Applicable legislation in the field of mediation and negotiation
This section sets out the main regulatory legal acts that regulate the development, application and conduct of mediation procedures and some other conciliation procedures in the pre-trial and judicial order, as well as at the stage of enforcement proceedings. However, depending on the subject of the dispute, the nature and category of legal relations between the parties, the location of the parties, the legal status of the parties (authorities or local governments, legal entities or individuals, etc.), other regulatory bodies can/must be applied in aggregate and any other legal acts that regulate the disputable relations of the parties.
It must be remembered that as a result of the mediation procedure, if the dispute was successfully resolved, and the parties came to an agreement and decided to state their agreements in writing, a mediation agreement must be drawn up. This agreement will be in compliance with the regulatory legal acts that govern the legal relationship, on the subject of settlement of which the mediation procedure was directed, as well as in compliance with regulatory legal acts, depending on which country the parties to the agreement are residents of, or which law should be applied to the disputed legal relationship, in accordance with the International or Russian legislation.
Russian legislation regulates the application and conduct of the mediation procedure, more than of the alternate methods of dispute resolution such as negotiations and intermediation. Therefore, if the parties decide to settle the dispute through negotiations or intermediation, then the use of these methods are governed by the general rules of law and customs of business, as well as by the internal regulations of organizations that ensure the conduct of negotiations and / or intermediation procedures (local regulatory legal acts) or by agreement of the parties to the dispute, which regulates the rules for negotiating and / or intermediating in a particular dispute.
Some international and Russian institutions (organizations) who resolve disputes through arbitration also develop and apply their own provisions, which the parties must follow when applying for conciliation procedures and are normatively binding on the parties to the dispute.
The Association of Mediators and Intermediaries of the APR also have set Rules for Conducting Conciliation Procedures (Mediation, Negotiation and Intermediation), which are binding on members of our organization and parties who have applied for a dispute resolution to the Association.
I. Basic regulations, clarifications and recommendations
– The Constitution of the Russian Federation, passed by popular vote on 12.12.1993 (Articles 2, 45, 46);
– Federal Law of 27.07.2010 No. 193-FZ “On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure)”;
– Federal Law of 27.07.2010 No. 194-FZ “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law” On an Alternative Procedure for Settlement of Disputes with the Participation of a Mediator (Mediation Procedure) “;
– Federal Law of July 26, 2019 No. 197-FZ “On Amendments to Certain Legislative Acts of the Russian Federation”;
– Civil Code of the Russian Federation Part 1 of 30.11.1994, No. 51-FZ, Part 2 of 26.01.1996, No. 14-FZ, Part 3 of 26.11.2001, No. 146-FZ, Part 4 of 18.12.2006, No. 230-FZ;
– Family Code of the Russian Federation dated December 29, 1995, No. 223-FZ;
– Labour Code of the Russian Federation of December 30, 2001 No. 197-FZ;
– “Fundamentals of the legislation of the Russian Federation on notaries” dated 11.02.1993 No. 4462-1;
– Federal Law “On Enforcement Proceedings” dated 02.10.2007 No. 229-FZ;
– Tax Code of the Russian Federation Part 1 of July 31, 1998 No. 146-FZ, Part 2 of August 5, 2000 No. 117-FZ;
– Letter of the Ministry of Finance of the Russian Federation dated November 27, 2020 No. 03-04-06 / 103511;
– Letter of the Ministry of Finance of the Russian Federation dated 07.02.2020 No. 03-11-11 / 8223;
– Letter of the Ministry of Finance of the Russian Federation dated 13.10.2020 No. 03-15-05 / 89418;
– Letter of the Ministry of Finance of the Russian Federation dated 20.05.2019 No. 03-11-11 / 35989;
– Letter of the Ministry of Finance of the Russian Federation dated 25.07.2019 No. 03-15-05 / 55546;
– Letter of the Ministry of Finance of the Russian Federation dated 25.07.2019 No. 03-04-05 / 3-529;
– Letter of the Federal Tax Service of the Russian Federation dated 27.06.2019 No. ЕД-3-20 / 6212;
– Letter of the Federal Tax Service of the Russian Federation dated 05.05.2015 No.GD-17-3 / 53;
– Order of the Ministry of Labour of Russia dated 15.12.2014 No. 1041n (amended on 12.12.2016) “On the approval of the professional standard ”Specialist in the field of mediation (mediator)”, registered with the Ministry of Justice of Russia on 29.12.2014 No. 35478;
– The Arbitration Procedure Code of the Russian Federation of 24.07.2002, No. 95-FZ;
– The Civil Procedure Code of the Russian Federation of 14.11.2002, No. 138-FZ;
– “Code of Administrative Procedure of the Russian Federation” dated 08.03.2015 No. 21-FZ;
– Federal Law of 24.07.1998, No. 124-FZ “On the Basic Guarantees of the Rights of the Children in the Russian Federation”;
– Federal Law of 29.12.2012 No. 273-FZ “On Education in the Russian Federation”;
– Federal Law “On Arbitration (Arbitration Proceedings) in the Russian Federation” dated 29.12.2015 No. 382-FZ;
– Federal Constitutional Law of 07.02.2011 No. 1-FKZ “On Courts of General Jurisdiction in the Russian Federation”;
– Federal Constitutional Law of 31.12.1996, No. 1-FKZ “On the judicial system of the Russian Federation”;
– Federal Constitutional Law of 28.04.1995, No. 1-FKZ “On Arbitration Courts in the Russian Federation”;
– Federal Constitutional Law of 05.02.2014 No. 3-FKZ “On the Supreme Court of the Russian Federation”;
– Federal Law of 17.12.1998, No. 188-FZ “On Justices of the Peace in the Russian Federation”;
– Law of the Russian Federation of 26.06.1992, No. 3132-1 “On the status of judges in the Russian Federation”;
– Federal Law of 22.12.2008 No. 262-FZ “On ensuring access to information on the activities of courts in the Russian Federation”;
– Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 18.07.2014 No. 50 “On the reconciliation of the parties in the arbitration process”;
– “Certificate on the practice of application by the courts of the Federal Law of 27.07.2010 No. 193-FZ” On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure) “for the period from 2013 to 2014”, approved by the Presidium of the Supreme Court of the Russian Federation of 01.04.2015;
– Resolution of the Plenum of the Supreme Court of the Russian Federation dated 31.10.2019 , No. 41 “On approval of the Regulations for the conduct of judicial conciliation”;
– Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 30, 2012 No. 8035/12 on case No. A50-5161 / 2011 “The presence in an settlement agreement of conditions that go beyond the scope of the dispute under consideration cannot be a reason for the court’s refusal to approve such an agreement.”
II. International legal acts, clarifications and recommendations
– The UN Convention on International Settlement Agreements Achieved as a Result of Mediation / Intermediation or otherwise the “Singapore Convention on Mediation” (New York, 2018);
– UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (UNCITRAL Model Law on International Commercial Conciliation (2002);
– UNCITRAL Technical Notes on Online Dispute Resolution (New York, 2017);
– UNCITTPAL Conciliation Rules (1980);
– Convention on the Rights of the Child (UN General Assembly 20.11.1989);
– The Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (The Hague, May 29, 1993);
– The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (The Hague, 19.10.1996), as well as a Practical Guide on the Application of the said Convention;
– The Convention on the Civil Aspects of International Child Abduction, “Practical Guide to the Application of the Hague Convention on the Civil Aspects of International Child Abduction. Mediation“ (The Hague, 25.10.1980);
– Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (The Hague, November 23, 2007);
– Directive of the European Parliament and the Council of the European Union of May 21, 2008 No. 2008/52 “On certain aspects of mediation in civil and commercial matters”;
– Directive of the European Parliament and the Council of Europe on alternative dispute resolution for consumer disputes of May 21, 2013;
– Regulation of the European Parliament and of the Council of Europe on the online dispute resolution for consumer disputes of May 21, 2013;
– Recommendation of the Committee of Ministers of the Council of Europe of 16.09.1986 No. R (86) 12 “Concerning prevention and reduction of excessive workload in the courts”;
– Recommendation of the Committee of Ministers of the Council of Europe of May 14, 1981 No. R (81) 7 “Concerning measures facilitating access to justice”;
– Recommendation of the Committee of Ministers of the Council of Europe of 21.01.1998 No. R (98)1 “Concerning family mediation”;
– Recommendation of the Committee of Ministers of the Council of Europe of 18.09.2002 No. R (2002)10 “Concerning mediation in civil matters”;
– Directive 2012/29 / EC of the European Parliament and of the Council of 25.10.2012 on the establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council framework decision 2001/220 / JHA;
– Guidelines of the International Institute for Conflict Prevention and Resolution (CPR) on mediation and ADR in Europe;
– Charter on International Family Mediation.
III. Programs, strategies, instructions
– The National Strategy for Action in the Interests of Children for 2012-2017, approved by the Decree of the President of the Russian Federation of 01.06.2012 No. 761;
– The National Strategy for Action in the Interests of Children for 2018-2027, approved by the Decree of the President of the Russian Federation dated May 29, 2017 No. 240 “On the Announcement of the Decade of Childhood in the Russian Federation”;
– The concept of development until 2017, of a network of mediation services in order to implement restorative justice for children, including those who have committed socially dangerous acts, but have not reached the legal age of criminal responsibility in the Russian Federation, was approved by the Order of the Government of the Russian Federation dated of 30.07.2014 No. 1430-r;
– Guidelines for the creation and development of school mediation services in educational institutions, Federal State Budgetary Institution “Federal Institute of Mediation” of 2015;
– On the approval of the plan of main activities for 2018-2020 within the framework of the Decade of Childhood, approved by the Order of the Ministry of Labour dated 06.07.2018 No. 1375-r;
– State program “Justice”, approved by the Order of the Government of the Russian Federation of April 4, 2013 No. 517-r;
– Instruction of the President of the Russian Federation following the results of the VII All-Russia Congress of Judges dated January 12, 2009;
– Message of the President of the Russian Federation to the Federal Assembly of the Russian Federation dated December 22, 2011;
– Instruction of the President of the Russian Federation dated December 26, 2011 No. Pr-3884;
– Instruction of the Chairman of the Government of the Russian Federation dated December 29, 2011 No. VZ-P13-9278;
– Strategy for the development of the financial market of the Russian Federation for the period up to 2020 (approved by the order of the Government of the Russian Federation dated February 29, 2008 No. 2043-r).