Procedure for mediation and negotiations

Articles 7, 8, 11, 12, 14 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)” establish the procedure for the application and conduct of the mediation procedure.

The application of the mediation procedure is carried out on the basis of an agreement between the parties, and on the agreement specified on the application of the mediation procedure. A reference of an agreement to a document containing the terms of the settlement of a dispute with the assistance of a mediator is recognized as a mediation clause, provided that the agreement is in writing.

The mediation procedure can be applied in the event of a dispute both before applying to a court or arbitration court, and after the commencement of court proceedings or arbitration proceedings, including at the suggestion of a judge or arbitrator.

The presence of an agreement on the application of the mediation procedure, as well as the existence of an agreement on the conduct of the mediation procedure and the direct implementation of this procedure associated with it, is not an obstacle to applying to a court or arbitration court, unless otherwise provided by federal laws.

The mediation procedure begins from the day the parties conclude an agreement of the mediation procedure.

If one of the parties have send a proposal in writing to apply to the mediation procedure, and within thirty days from the date of its sending or within another reasonable period specified in the proposal have not received the consent of the other party to use the mediation procedure, such an offer is considered invalid and is rejected.

The proposal to apply to the mediation procedure must contain the following information:

  1. the subject of the dispute;
  2. the mediator, mediators or the organization that will carry out activities to ensure the conduct of mediation;
  3. the procedure for conducting the mediation;
  4. the conditions for the parties to participate in the costs associated with the mediation procedure;
  5. duration of the mediation procedure.

The proposal to apply rules to the mediation procedure can be made at the request of one of the parties by the mediator or the organization that carries out activities to ensure the conduct of the mediation procedure.

The order of the mediation procedure is established by the agreement on the mediation procedure.

The agreement on the conduct of the mediation procedure is concluded in writing.

The agreement on the conduct of the mediation procedure must contain the following information:

  1. the subject of the dispute;
  2. about the mediator, mediators or about an organization that will carry out activities to ensure the conduct of mediation;
  3. on the procedure for conducting the mediation;
  4. on the conditions for the parties to participate in the costs associated with the mediation procedure;
  5. duration of the mediation procedure.

The procedure for carrying out the mediation procedure can be established by the parties in the agreement by reference to the rules for conducting the mediation procedure, approved by the relevant organization that carries out activities to ensure the conduct of the mediation procedure.

Rules established by the Association of Mediators and Intermediaries of the APR for the mediation procedure.

In the agreement on the conduct of the mediation procedure, the parties have the right to indicate, unless otherwise provided by federal law or the agreement of the parties (including the agreement on the conduct of the mediation procedure), the mediator’s independent determination of the procedure for the mediation, taking into account the circumstances of the dispute, the wishes of the parties and the need for an early dispute settlement.

The mediator is not entitled to submit proposals for the settlement of the dispute, unless the parties have agreed otherwise.

During the entire mediation procedure, the mediator can meet and maintain communication with all parties together and/or with each of them separately.

When carrying out the mediation procedure, the mediator does not have the right to put any of the parties in an advantageous position by his actions, or to diminish the rights and legitimate interests of one of the parties.

The mediation procedure will be terminated in following circumstances:

  1. the parties conclude a mediation agreement – from the date of signing such an agreement;
  2. conclusion of an agreement between the parties to terminate the mediation procedure without reaching an agreement on the existing disagreements – from the date of signing such an agreement;
  3. a written statement by the mediator sent to the parties after consultation with them regarding the termination of the mediation procedure due to the inexpediency of its further implementation – on the day this statement is sent;
  4. a written statement of one, several or all parties sent to the mediator on refusal to continue the mediation procedure – from the day the mediator receives this application;
  5. expiration of the mediation procedure – on the day of its expiration.

The mediation agreement is concluded in writing and must contain information about the parties, the subject of the dispute, the mediation procedure carried out, the mediator, as well as the obligations agreed to by the parties, the conditions and terms of their implementation.

The mediation agreement is subject to execution on the basis of the principles of voluntariness and good faith of the parties.

A mediation agreement reached by the parties as a result of the mediation procedure carried out after the dispute has been submitted to a court or arbitration tribunal may be approved by the court or arbitration court as a settlement agreement in accordance with procedural legislation or legislation on arbitration courts and legislation on international commercial arbitration.

A mediation agreement on a dispute arising from civil relations, reached by the parties as a result of a mediation procedure conducted without referring the dispute to a court or arbitration court, is a civil law transaction aimed at establishing, changing or terminating the rights and obligations of the parties. Such a transaction may be subject to the rules of civil law on compensation, on novation, on writing off  bad debts, on offsetting a homogeneous counter claim and on compensation for harm. Protection of rights violated as a result of non-performance or improper performance of such a mediation agreement is carried out in the ways provided for by the civil legislation of the Russian Federation.

The mediation agreement reached by the parties as a result of the mediation procedure carried out without referring the dispute to the court or arbitration court, in the case of its notarization, has the power of an executive document.

Issues of resolving disputes through the use of negotiation and mediation procedures are not clarified in the Russian legislation, therefore, when applying and conducting these methods of resolving a dispute, the parties to the dispute should be guided by the rules governing the application and conduct of these procedures, established by agreement of the parties of the dispute themselves regarding the resolution of a specific a conflict situation or several situations, or rules that the negotiator or mediator himself will establish with the consent of the parties, or rules that are established by the organization of which the negotiator or mediator is a member, or be guided by the general rules of law and business customs governing the application and conduct of negotiation procedures or mediation or concerning the subject of the dispute, or by analogy of the law (for example, on mediation).

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