Kazakhstan: Mediation As A Modern Means For Settlement Of Conflicts

Last Updated: 1 August 2016
Article by BMF Partners Law Firm LLP

-         When did the definition "mediation" appear for the first time?

Before January 2011, the term "mediation" was not in use in the legislation of the Republic of Kazakhstan.  As of the date of this interview, the term "mediation" can be found only in two legislative acts.  These are the Law of the Republic of Kazakhstan "On Mediation" and the Law "On Introduction of Amendments and Changes into Certain Legislative Acts of the Republic of Kazakhstan on Mediation Issues". Both laws were signed by the President of the Republic of Kazakhstan on 28 January 2011 and will enter into force as from 5 August 2011. Accordingly, the term "mediation" appeared in the legislation of Kazakhstan for the first time a month ago and is new to it. Mediation as a means for settlement of certain disputes, however, existed in one form or another (depending on a level of development of a society) and was employed by many nations from ancient times, when a dispute was settled by the most reputable and wise mediator (chieftain, flamen, and the like). Elements of mediation existed in the traditional Kazakh society. According to researches the Court of the Biys, as a democratic institute of justice, existed for a period from the 15th to the beginning of the 20th century. One of the main objectives of a biy elected by an aul was reconciliation of conflicting parties. L.A. Slovokhotov, researcher of the beginning of the 20th century, determined the Court of the Biys as "loved by nation".

Unfortunately, during the Soviet period in Kazakhstan and the USSR, in general, mediation as a legal institute did not receive further development despite the fact that the mediation institute existed in many countries, and mediation as the dispute settlement institution continues to be used in countries with reputable legal institutes, such as the USA, France, Germany and many others.  It is fair to say that rules of some arbitration institutions applicable in the territory of the Republic of Kazakhstan contained provisions on mediation long before adoption of the Law on Mediation.  Possibility to resort to mediation as a dispute settlement procedure in arbitration courts is, however, limited as such procedure can apply only in relation to disputes arising out of civil contracts made between natural persons and legal entities.

In Kazakhstan, the mediation institution (especially in the context of the criminal procedure) was extensively discussed for the first time during International Conference "Alternatives to Criminal Prosecution and Protection of Human Rights in Central Asia" held in Almaty in November 2004.  Back in 2004, according to one of the participants of the above conference, mediation was viewed as a "foreign exotic phenomenon" by many of Kazakhstani participants of the conference.  It was hard to imagine that already in 2009 introduction of mediation procedures into the national criminal and civil procedure would be initiated. This initiative was advanced at the highest political level in the form of instructions given by the President of the Republic of Kazakhstan at the 5th Congress of Judges on 18 November 2009 and was stipulated in the Presidential Decree "On Measures for Improving Efficiency of the Law-Enforcement Activities and Court System in the Republic of Kazakhstan".

-         What is mediation? What is the legal meaning of this term?

According to the Law of the Republic of Kazakhstan "On Mediation", mediation is a dispute (conflict) settlement procedure between parties to a dispute with the assistance of a mediator (mediators) for purposes of reaching a mutually acceptable solution carried out upon voluntary consent of the parties. Objectives of mediation are (1) achievement of an option for dispute (conflict) settlement acceptable by both parties to the mediation; and (2) reduction of a conflict level between the parties. To put it simply, the main objective of mediation is to determine genuine interests and needs of parties to a dispute and settle the dispute in such a way that a solution (which can be made only by the conflicting parties with the assistance of a mediator) is satisfactory to all parties to the conflict.  This eventually excludes further application to court, and if mediation is carried out during court proceedings, termination of the proceedings.

Adoption of the Law on Mediation gives grounds to believe that courts' workload may be reduced with the development of mediation as an alternative means for dispute settlement.

-         In which areas (economic, criminal, etc.) is application of mediation justified?

According to the Law on Mediation, the mediation procedure can apply not to all and any disputes (conflicts) but only to disputes arising out of civil, labour, family and other legal relations involving natural persons and/or legal entities as well as to cases adjudicated in criminal proceedings on misdemeanor and crimes of medium gravity, unless otherwise is provided for the laws of the Republic of Kazakhstan.

The Law also contains a norm that directly prohibits application of the mediation procedure to disputes one party to which is a state body as well as to cases on corruption crimes and other crimes against interests of the state service and state administration. In our view, application of mediation in all the areas allowed by the Law is fairly justified, and we consider that from the outset rights provided by the Law on Mediation will be exercised, and all possibilities of the mediation procedure will be most frequently employed, in disputes governed by civil, labour and family law as well as in criminal proceedings cases stipulated by the law.

-         Who is eligible to act as a mediator? Can non-professionals act as mediators? What is the main function of a mediator? What is the primary objective of the mediator?

 

Speaking of the mediation procedure as a legal institution, it should be emphasized that participants to mediation are parties to a dispute, third parties (in case if the dispute affects or may affect their interests), and a mediator.

The Law on Mediation envisages that a mediator can carry out its activity both on a professional basis (professional mediator) and a non-professional basis. Mediators (professional and non-professional) can be persons who meet the requirements enlisted in the Law. The main function of a mediator is mediation between parties to mediation, giving recommendations on settlement of a dispute. At the same time, such activity must be carried out in strict observance of rights and interests of parties to mediation. The main objective of the mediator is such interaction between parties to mediation that eventually results in entering into a settlement agreement approved by court, if such agreement is made in the course of civil proceedings and, in certain cases, in criminal proceedings.

-         Do mediators need to have knowledge in medicine, psychology?

Irrespective of the law (civil, labour, family or other) governing a dispute, each dispute is specific not only in terms of its legal nature and grounds on which the dispute has arisen. Specificity of the dispute also depends on the sphere of activity of parties to a dispute. Therefore, speaking about knowledge and skills that, in our opinion, the mediator must have it should be noted that irrespective of whether the mediator is a professional or a non-professional mediator, he/she needs to have, as a minimum, knowledge of fundamentals of law, negotiating skills and experience as well as profound knowledge in some spheres of human activity, for instance, in psychology, medicine, pedagogy, construction or other areas.

It is obvious that if parties in the course of civil proceedings choose a mediator who does not have sufficient knowledge in civil law and aviation equipment for purposes of settlement of a dispute on quality of an aircraft, as a financial leasing subject, it is unlikely that such mediator would be able to understand peculiarities of performance of obligations by the parties and specifics of liability for failure to perform respective obligations as well as well-foundedness of claims as to quality of the aircraft, as a leasing subject, and as a result have parties to the mediation enter into such settlement agreement that will eventually be approved by court.

 

-         How are results of successful work of a mediator assessed?

The question on assessment of mediator's activity is interesting. There is no doubt that in the sphere of mediation, as in any other sphere of human activity, there will be first-class mediators and highly professional specialists that will be successful. However, there will also be mediators simply referred to as "member of association (union) of mediators".

Assessment of results of the mediators' activity, not mediators themselves, is a fairly complicated issue. Results of the mediators' activity is conditional upon many factors depending both on the mediator, such as mediator's experience, wisdom, level of legal knowledge and knowledge in the sphere of activity in which the dispute has arisen, ability to comprehend and negotiate, as well as on many other factors, and the conflicting parties. Here, one of the substantial aspects is behaviour of parties to the mediation and compromises that the conflicting parties are ready to make for purposes of finding a mutually acceptable solution.

-         How expenseve are services of a mediator?

Mediators' job is not easy and must be compensated properly. It would be possible to objectively speak about mediators' job in approximately two years when there is practice on application of the Law on Mediation and accordingly practice on formation of prices for mediators' services that undoubtedly be affected by "appetite' of craftsmen of mediation.

-         Law on Mediation is aimed at introducing in Kazakhstan the mediation institution as an alternative means for dispute settlement. What is your expert opinion about this Law? What are the goals for which this document has been elaborated? Please make some analysis of this normative legal act.

 

Some lawyers express an opinion that settlement of disputes by means of mediation in the end of the day can substantially change the system of justice and even improve moral environment in the country. We want to hope this will be the case and mediators will be able to help parties to a dispute forget previous hard feelings, troubles and find themselves on the same side of the fence because settlement of disputes by means of mediation gives the parties an opportunity to settle the dispute themselves, at their own discretion, in their own interests and on mutually acceptable conditions, and, what is important, according to the law.

There are also hopes that in foreseeable future the Law on Mediation can offload courts allowing them to focus on genuinely complicated cases where conflicting parties have not managed to find consensus. It is common knowledge that after a judgement has been rendered by court there is always a party to a dispute that is not happy with the judgement or a party with a gall left in mind. After completion of court proceedings, people who have found themselves on different sides of the fence do not necessarily become enemies but their previous relations get ruined. This is particularly typical for family and marital relations.

It is unfortunate that this Law was not adopted earlier because despite the fact that the Code of Civil Procedure and the Civil Code of the Kazakh SSR contained (and similar codes of the Republic of Kazakhstan contain) provisions allowing parties to settle a civil dispute before filing it to court by means of novation (i.e. by substituting "old" relations by "new" ones), and, if the dispute is already adjudicated in court, to settle the dispute in court by means of a settlement agreement, the Law on Mediation significantly expands the category of civil relations that can be settled through the institute of mediation.

-         In your opinion, does the Law on Mediation need to be amended or changed?

Speaking about stability, i.e. inalterability of the Law, it should be noted that even the US Constitution that serves as example of stability to a certain extent, has been amended. What can one say about the Law that has been adopted for the first time in the history of the state, even if we calculate in the Soviet period? This Law has the same fate as the other laws adopted after Kazakhstan has gained independence. It goes without saying that the Law on Mediation will be refined and subject to subsequent amendments and changes.

In our personal view we would like to draw a parallel between a doctor and a mediator. If a person has problems of medical nature such person approaches not any doctor but a particular specialist, for instance, an ophthalmologist.  When there are problems in legal relations that can be settled through mediation, there are not any guarantees that a chosen professional mediator specializes in settlement of disputes in exactly those areas in which the mediator's knowledge is helpful for settlement of a particular dispute, even taking into account the provision of the Law on Mediation allowing parties to the mediation to set additional requirements for the mediator.

We understand that not everybody will agree with our view, yet we gather that a mediator can not be omni-purpose. A mediator can certainly have rich experience, authority and wisdom, be a good negotiator, however, for settlement of disputes, the mediator should know the law governing a disputed relationship and have knowledge in the sphere of activity in which the dispute has arisen. Accordingly, we would like to see in the Law a provision on specialization of mediators.

Pursuant to Article 9 of the Law the following persons are not eligible to be mediators:

-         Persons authorized to perform state functions or equivalent;

-         Persons recognized by court as legally incompetent or partially legally competent pursuant to the procedure established by the law;

-         criminally prosecuted persons; and

-         Persons having conviction that has not expired or not been expunged pursuant to the law.

We consider that the above list of persons who are not eligible to be mediators will be expanded. You would agree that a spouse of an akim of any level or a spouse of a judge who adjudicates a case parties to which are resorting to mediation are unlikely to be eligible to act as mediators.

The next important issue from the legal regulation perspective is a problem of enforcement of a settlement agreement made between the parties as a result of settlement of a dispute. The Law on Mediation contains a general provision according to which a settlement agreement shall be enforced by parties to mediation voluntarily within a term provided for by such agreement.  Irrespective of whether a settlement agreement has been made before adjudication of a civil case in court or in the course of civil proceedings, the agreement constitutes a transaction aimed at establishment, change or termination of civil rights and obligations of the parties to it. In case of failure to perform or improper performance of the settlement agreement the party to mediation in breach of the agreement shall be liable pursuant to the procedure set forth by the laws of Kazakhstan.

Accordingly, in case of failure to perform or improper performance of a settlement agreement in absence of the Law on Mediation provisions regulating enforcement of settlement agreements made in the course of mediation, parties to mediation may (and will most likely) face problems of enforcement of such agreements. In other words, a new dispute may arise that in our view would not facilitate achievement of one of the objectives of the Law, which is reduction of the courts' workload.

From our perspective, in order to ensure enforcement of settlement agreements it is expedient to include in the Law a provision on possibility to notarize settlement agreements upon mutual agreement of parties to it.  In this case notarized settlement agreements has effect of an enforcement document and can be mandatorily enforced without resorting to courts pursuant to the procedure provided for by the laws on enforcement.

First of all, such provision would conform to the contractual nature of the mediation procedure, including its ultimate result. Second, legislation of the Republic of Kazakhstan provides for notary certification of settlement agreements on alimony and agreements on division of common property of spouses. To carry out the above mechanism on enforcement of settlement agreements, it is necessary to introduce relevant amendments into the Law of the Republic of Kazakhstan "On Enforcement and Status of Enforcement Officers".

-         Does the Law on Mediation allow to control corruption in Kazakhstan?

We gather that the Law on Mediation would certainly not and cannot allow creation of conditions for control over corruption in the country. All this Law can do in relation to corruption is to create one more condition for its minimization.

-         So far as known, understanding of the essence of mediator's activity and advantages of mediation compare to other means of dispute settlement is yet to be formed? From your perspective, how an information campaign explaining the term "mediation" should be carried out in the country?

 

In our view, an information campaign explaining the meaning, essence and consequences of mediation should be aimed at all citizens, as potential parties to mediation, as well as at persons who may act as mediators on a non-professional ground (i.e. potential non-professional mediators) pursuant to requirements provided for by the Law on Mediation. The best information campaign and a means for explaining "what is mediation" would be a TV program, similar to a Russian TV program "Officer of Justice" that would demonstrate some stages of a successfully completed mediation procedure.

Interview with Vladimir Furman and Yuliya Petrenko for Magazine "Accountant and Law"

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions