Mediation (negotiation) principles
The principles of the mediation procedure are enshrined in Article 3 of the Federal Law of July 27, 2010 No. 193-FZ “On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure)”, according to which the mediation procedure is carried out with the mutual expression of the will of the parties on the basis of the principles of voluntariness, confidentiality, cooperation and equality of the parties, impartiality and independence of the mediator.
Articles 5 and 6 of the said law disclose the content of the confidentiality principle. In particular, during the mediation procedure, the confidentiality of all information related to this procedure is maintained, with the exception of cases provided for by federal laws, and in cases where the parties have not agreed otherwise.
The mediator does not have the right to disclose information related to the mediation procedure and which has become known to him during its conduct, without the explicit consent of the parties.
The parties and organizations carrying out activities to ensure the conduct of the mediation procedure, the mediator, as well as other individuals who were present during the mediation procedure, regardless of whether the court proceedings or the arbitration proceedings are related to the dispute, that was the subject of the mediation procedure, and are not entitled to refer if the parties have not agreed to otherwise, in the course of court proceedings or arbitration proceedings to information about:
- the proposal of one of the parties to apply the mediation procedure, as well as the willingness of one of the parties to participate in the conduct of this procedure;
- opinions or proposals expressed by one of the parties regarding the possibility of settling the dispute;
- confessions made by one of the parties during the mediation procedure;
- willingness of one of the parties to accept the offer of the mediator or the other party to settle the dispute.
It is not allowed to request from the mediator and from the organization, information related to the mediation procedure, except for cases provided for by federal laws, and in cases where the parties have agreed to otherwise.
If the mediator has received information from one of the parties, he can disclose such information to the other party only with the consent of the party that provided the information in the first place.
Organizations that ensure the conduct of mediation procedures, the parties, or the mediator, with the consent of the parties to the conflict, may establish additional rules and principles for the conduct of the mediation procedure.
Since there are not many set guidelines mentioned in the Russian legislation regarding resolving disputes through the use of negotiation and mediation procedures, when applying these methods, the parties of the dispute should be guided by the principles established by agreement of the parties of the dispute themselves regarding the resolution of a specific conflict situation or several situations, or should be guided by the principles established by the negotiator or mediator himself, with the consent of the parties, or by the principles established by the organization of which the negotiator or mediator is a member, or be guided by the general rules of law and business practices, establishing the principles of conducting negotiations or mediation procedures or principles relating to the subject of dispute, or by analogy of law (for example, on mediation). The Association’s charter and its internal regulations establish additional principles for conducting mediation, negotiation and intermediation procedures.