PHILOSOPHY OF THE ASSOCIATION
In keeping with the spirit of national and international anti-corruption legislation, AMIAPR (Association of Mediators and Intermediaries of the Asia-Pacific Region) is committed to conducting its business with integrity and honesty. We strive to be a role model for those entering the mediation arena, setting the tone for the conduct of alternative dispute resolution procedures with integrity and responsibility. Openness, impartiality, transparency of our organization’s activities, as well as strict adherence of the law, distinguishes AMIAPR (Association of Mediators and Intermediaries of the Asia-Pacific Region) from many other organizations.
For the members of our Association, it is not only important to achieve economic results, but also the means by which we achieve them. We are trusted and we add value and benefit to the society, individuals and companies. Conducting our business with complete integrity is the key to our success. Competence and reliability of mediators, negotiators and lawyers is our value, and the result of their work is your success.
We believe that successful legal and ethical compliance is the best defence against corruption. We recognize and ensure the protection of fundamental human and civil rights and freedoms by proposing alternative procedures for resolving complex disputes both at the national and international levels. We are open and public in all our activities. We pursue the principle of inevitability of responsibility for anyone committing corruption offenses. We cooperate with government organizations and civil society institutions, international organizations and individuals in the field of combating corruption. We do not tolerate any manifestations of corrupt behaviour and we expect the same from our partners. Our uncompromising position on this matter leaves no room for other behaviour other than complete transparency, integrity and honesty.
This section was created for informational purposes in order to warn citizens and legal entities about possible attempts to be mislead by third parties who, in the guise of an intermediary or an organization providing mediation procedures, may commit various offenses, crimes, or even simply leave unfavourable and unsatisfactory impressions and perceptions when using mediation procedures. The Association hopes that the information provided in this section will help you choose the right mediator and company to resolve your disputes through conciliation procedures, as well as prevent adverse consequences and harm resulting from a confrontation with the law offenders. The information in this section will also be useful for judges, law enforcement and supervisory authorities, federal authorities and local governments.
As in every profession or industry, mediation involves individuals and companies whose main purpose is only to obtain various benefits and generate income. They may not care about their reputation and the adverse consequences their unfair activity can leave. Such unscrupulous entities will not hesitate to resort to various gimmicks, offenses and may even resort to criminal behaviour in order to make a profit. Unfortunately such unwanted entities leave a negative imprint on the entire industry of conciliation procedures. As it is mentioned in the fable written by I. A. Krylov «The Elephant in the Voivodeship» (1808), «There is a black sheep in every family». The Association therefore wants to assure that conciliation procedures are an excellent means of resolving disputes and with the correct selection of a mediator or an organization, one can quickly and effectively resolve all conflicts and disagreements. Our organization is ready to provide you with any required and necessary assistance for this purpose.
Consider a number of examples that you may encounter when using conciliation procedures that have taken place in the past and are now taking place in the Far East region of Russia and of which our Association is aware of. To ensure confidentiality of information, the names of the companies, intermediaries and parties are not mentioned, but the essence of the situation is described in general terms. The cases described below do not apply to the Association and our intermediaries and mediators, but are taken from the practice of other private intermediaries and organizations.
According to Article 3 of the Federal Law of 27.07.2010 No. 193-FZ “On alternative dispute resolution procedure with the participation of a mediator (mediation procedure)”, mediation procedures must be carried out in compliance with the principles of impartiality and independence of the mediator.
Article 15 of the above mentioned law also states that a mediator is not entitled to:
1) be a representative of any party;
2) provide any party with legal, consulting or other assistance;
3) carry out the activities of a mediator if, during the mediation procedure, he is personally (directly or indirectly) interested in its outcome, including being related to a person who is one of the parties;
4) make public statements on the merits of the dispute without the consent of the parties.
However, it is possible that the mediator in resolving your dispute may be an attorney or a lawyer of the opposite party (counterparty). It is not uncommon for the mediation procedure to be carried out by mediators who have previously represented the interests of one of the parties of the dispute or previously provided some legal services to the party, or have friendly relations with the party. However, the mediator may not divulge this information, and not declare recusal, thereby depriving you of the opportunity to choose another independent mediator to resolve the dispute. In practice, there are cases when lawyers (attorneys) try to openly or latently impose on the other party the conditions of a mediation (settlement) agreement that are not favourable for them, and mislead about the legal relations of the parties or the prospect of resolving the dispute in an alternate way or with other conditions.
Example 1. A lawyer of one of the lawyers’ organization drew up an agreement for a party foreseeing a in advance a dispute for which a mediation procedure was provided in the event of dispute. When such dispute between the parties of the agreement arose, the lawyer who had the certificate of a mediator (intermediary) did not notify the party about the previously existing relationship with another party of the dispute.
Example 2. A party turned to a lawyer to resolve a dispute. After having represented the party to resolve a dispute, the lawyer, at a later stage offered the opposite party a settlement of dispute through the mediation procedure where he himself acted as a mediator in the negotiations and concluded a mediation agreement between the parties.
In both cases, the parties were not notified of the lawers’ connections with the opposite party, and no wonder that the mediation agreements were signed on conditions unfavourable to one party. In the second case, the lawyer exerted strong pressure on the other party and misled her. Both cases of mediation are a gross violation of the current legislation of the Russian Federation.
To avoid such situations, don’t hesitate to ask about the connections and relationships of the mediator with the opposite party of the dispute. Make sure that the agreement with the mediator includes clauses to ensure that the mediator is independent and impartial. The Charter or individual provisions of the organization that provides for the conduct of conciliation procedures, should have the requirements for the behaviour, ethics of mediators and the procedure for conducting mediation prescribed in it. So that in the future, if it is revealed that the mediator is interested in a certain resolution of the dispute, you have the opportunity, in the event of damage or other adverse consequences, to bring the mediator to disciplinary, civil, administrative or criminal liability.
According to Article 3 of the Federal Law of July 27, 2010 No. 193-FZ ” On alternative dispute resolution procedure with the participation of a mediator (mediation procedure)”, mediation procedures must be carried out in compliance with the principle of voluntariness, cooperation and equality of the parties.
However, in practice, it is not uncommon for psychologists who have the status of a mediator and act as a mediator in a dispute to persistently offer the parties, and sometimes even stubbornly insist on the simultaneous provision of psychological services (under the pretext of calming down, normalizing thoughts in order to make the right decision etc.). There are cases when psychologists used the phrases «to be treated psychologically».
It is important to know that the mediation procedure should be carried out without any influence of the mediator on the will of the parties of the conflict. In most cases, psychologists do not have a specialized medical education, and are not doctors in the literal sense of the word; they do not prescribe pills, like a psychiatrist or a psychotherapist. Therefore, they have no right to treat you.
Moreover, by exposing you to various kinds of influences which are psychological in nature, psychologists, psychiatrist and psychotherapists can directly influence the will of the parties of the dispute, and can also consciously or unconsciously manipulate you in order to make a conclusive decision.
Example 1. In Russia, there was a case when a psychologist, along with the mediation procedure, provided psychological assistance to a party of a dispute in order to calm her psychological state. As a result, a mediation agreement was signed and approved by the court. After some time, one of the parties of the dispute realized that the signed agreement did not meet her interests and was not even a fair compromise claiming that she was under the influence of a mediator and did not comprehend the decision she took.
Example 2. In Vladivostok, there are a number of psychologists, who provide mediation procedures simultaneously offering psychological treatment or psychological assistance.
In most cases, these intermediary psychologists do not care about the result and just want to abuse their position and earn as much money as possible. Therefore, they try to impose on you as many services as possible resulting in you making unsatisfactory or unfavourable decisions.
It is important to know that the mediator cannot simultaneously act between the parties and the mediator and the psychologist, because this is a violation of Article 3 and Article 15 of the Federal Law of July 27, 2010 No. 193-FZ.
It should be remembered that within the framework of the mediation procedure, the mediator must be impartial and not entitled to provide any advice to the parties of the dispute. However, when the mediator communicates with the party as a counsellor psychologist, it is impossible to comply with these requirements of the law. Many psychologists distort your problems through the prism of their own perception and experience, and give you a distorted and biased result of influencing your consciousness and perception. Moreover, working as a psychologist, psychiatrist, psychotherapist, the mediator is no longer bound by the law and requirements governing the peaceful settlement of disputes. In this case, he is already guided by completely different requirements, therefore, may go beyond the Federal Law of July 27, 2010 No. 193-FZ and other federal and local regulatory legal acts and may advise, teach and consult the other party on the subject of the dispute.
Referring another specific counsellor-psychologist, psychiatrist, and psychotherapist to the party can also be a problem, because that person may be associated with the intermediary and may have a certain predetermined impact on you and may also provide the intermediary with information that you would like to keep confidential.
Example 1. There are cases when, within the framework of counselling psychological services, psychologists took on the role of a lawyer and provided advice without having the appropriate experience and practice. As a result, the party of the dispute became overly confident and aggressive, misled about the legal component of the subject of the dispute, which led to the escalation of the conflict and the impossibility of its peaceful settlement.
Therefore, if the mediator sees that you need psychological help and you cannot correctly understand the reality and legal consequences of your actions, then the mediation procedure should be terminated. If things aren’t so bad, then contact a specialist who would not be associated with the intermediary. And remember: thwart the attempts of such specialists to give life advice and legal advice. It is you, and not the psychologist, who will fight the adverse consequences of such consultations.
This information may be relevant not only for the parties of the dispute, but also for the judges and the mediators themselves.
It is not uncommon for one of the parties of a dispute to file a petition in court for the mediation procedure only to delay the process, or to have the opportunity to meet personally with the party of the dispute to put pressure on them or collect evidence through the mediation procedure in order to substantiate its position in court. …
In such cases, the purpose of the party to the dispute is not to resolve it through conciliation procedures, but other hidden goals. Therefore, within the framework of the mediation procedure, the party or its representative may behave in a rude, aggressive or passive manner, evade or postpone meetings with the mediator, and after achieving the set result, they staunchly refuse to resolve the dispute through conciliation procedures. These facts are an abuse of law and, depending on the situation, must be suppressed. Individuals who have abused the right will be subject to liability provided for by the current legislation of the Russian Federation (Article 10 of the Civil Code of the Russian Federation, Article 111 and Clause 5 of Article 159 Arbitration Procedure Code of the Russian Federation, Article 99, Clause 3, Article 244.22 of the Civil Procedure Code of the Russian Federation).
Therefore, judges and mediators need to find out the real motives of the parties of the dispute and the willingness of both parties to a peaceful settlement of the dispute. In the event of disclosure of such circumstances, mediators should inform the court, who will therefore hold the perpetrator accountable, thus setting an example of justice to others.
Example 1. A lawyer filed a motion in court for a peaceful settlement of a dispute about the child’s place of residence and the procedure for determining meetings. The other party to the dispute gave its consent to the mediation procedure. The first meeting of the parties was introductory, the position of the parties of the dispute and the possibility of its settlement were clarified. Within the framework of this meeting, the father asked the child to be brought to the next meeting to talk to him as he missed him and also to build a trusting relationship and further reconciliation of the parties. However, in the second meeting, without the consent of the mediator and the other party, the lawyer and the child’s father brought an expert psychologist , who began to interview the child. The psychologist, the father and the lawyer did not react to the requests of the mediator to stop and vacate the premises because of the illegality of continuing with the procedure like this. They began to shout, put pressure on the child, brought the child to tears, and did not let the mother out of the room with him, in short, escalating the conflict. As a result, the father and the lawyer openly stated that their goal was to meet the child and get a psychological expertise done, so that they can do away with the need of a mediation procedure. Subsequently, this psychological report was presented in the court.
Example 2. The arbitration court granted the party’s petition to conduct mediation procedures. In the framework of the mediation procedure, the party’s attorney avoided meeting the mediator and the other party. He also offered money to the mediator to delay the process through the mediation procedure in order to have enough time to collect additional evidence, file bankruptcy of the business and withdraw assets in order to avoid compensating the other party as a payment against debt.
In both cases, the mediators acted in accordance with the law and terminated the mediation procedures.
However, the courts and the parties of the dispute need to be vigilant against the suspect intentions of some mediators, who may not always demonstrate transparency and good faith, and not only delay the proceedings, but, violating the law, help the party to solve their cases for a fee.
This information may also be relevant not only for the parties to the dispute, judges and mediators, but also for law enforcement agencies.
In Russia, there are cases of attempts to use conciliation procedures for illegal purposes. In particular, to cover up illegal transactions, the withdrawal of state or private property through settlement agreements and enforcement proceedings, attempts to establish close ties for corruption purposes and their further use, etc.
Unfortunately, representatives of criminal structures, as well as individuals with a reputation of fraudsters and swindlers, as well as so-called «reshalas» (jargon word used by mafia for one who, for a fee, provides the services of a mediator to resolve problems in various issues, using his connections among the «right people In the right circles») have begun to officially possess certificates and diplomas of mediators of International and Russian standards.
In this regard, we suggest that the courts and authorities be vigilant when signing or approving such settlement agreements with the participation of a mediator in the courts, and the participants in illegal actions themselves so as to keep in mind that criminal liability may occur when such situations arise which casts an unfavourable reputation to the entire industry of conciliation procedures.
This information may also be relevant not only for the parties to the dispute, for judges and mediators themselves, but also for law enforcement agencies.
In some unscrupulous organizations involved in the development of conciliation procedures and their conduct, members have, in violation of the current legislation of the Russian Federation, an ongoing criminal record, or have previously been prosecuted for various economic crimes (mainly fraud), and have either a past conviction or discontinued cases based on various grounds.
Unfortunately, at the moment in Russia the composition of the members of organizations that ensure the conduct of conciliation procedures is not monitored by any supervisory body. The integrity of the members, transparency and legality of the conduct of activities are left at the mercy of the organizations themselves, or on private intermediaries.
Therefore, be vigilant when choosing a mediator and the organization which carry out conciliation procedures.
This information will be of interest to people who are undergoing various training and advanced training programs, as well as to potential Customers.
Over the years, all kinds of trainings and educational programs have become popular in Russia, with the issuance of certificates and diplomas in various areas of mediation and negotiations, along with the assignment of various statuses that give the right to conduct business abroad and in a number of international bodies.
Be vigilant, as some people offer to undergo training programs with obtaining certificates on behalf of a number of official high-ranking international bodies and organizations, universities that either do not have such powers by virtue of their statutory documents, or do not know about the existence and distribution of such programs in their names. Therefore, such certificates have no legal standing.
Before undergoing expensive trainings and advanced training programs, we recommend that you check the official website of the international body, organization, university, and see if there is a proposal on the website to complete the preparatory program offered to you and its cost. It is also important to check on whose behalf does the organization prepare and accept applications, whether it specifies whether the document issued after completing the course (certificate, certificate, diploma, etc.) confirming the completion of such a program or course will be officially entered in the register of the organization on whose behalf it is issued. Specify and check the content of the training course program.
Also try to contact the organization directly and clarify this information.
This information will be useful for the mediators themselves, organizations involved in ensuring the conduct of conciliation procedures and supervisory bodies.
In Russia, cases of unfair competition among intermediaries and organizations involved in ensuring the conduct of conciliation procedures are well known, which denigrate and make conciliation procedures unappealing to potential Customers. In violation of the code of ethics of mediators, ethical norms and the current legislation of the Russian Federation, such individuals do not hesitate to denigrate their competitors by spreading deliberate and malicious information on their websites and in official bodies (courts, authorities, international organizations, etc.).
Such individuals do not hesitate to hijack your credits, ideas or projects. And in the pursuit of better statistics and to give themselves higher status, they include in their list your colleagues who may be completely unaware of this same very fact.
The Association reminds that by virtue of the current legislation, criminal, administrative and civil liability is provided for the dissemination of deliberate and false information, libel, damage to honour and business reputation, for violation of the ethical standards of an intermediary, misappropriation of other people’s projects.
In order to make the World and Russia safe and prosperous for you and your children, the Association adheres to a policy of healthy and fair competition. We believe that integrity and cooperation is of utmost importance and we implement the principle of “World Peace”, not “Divide and Conquer”. We hope that the number of such unscrupulous intermediaries and organizations will be reduced to minimum over time.
You can find detailed information on how to choose the right mediator or an organization providing mediation or other conciliation procedures in the section “About Mediation – Mediation in Russia – How to Choose a Mediator”.
We will be grateful if you can share any information you may have about manifestations of corruption or violations by intermediaries or organizations, so that we can post it on the website in order to inform and prevent adverse consequences from unfair actions of such individuals.
The information in this section can be used to write scientific papers, diplomas, dissertations, articles and other works only with the written consent of the Association provided that it is linked to the organization’s website.