From the story of the inquisition into Adam and Eve’s adventures in the Garden of Eden, to gladiators fighting to win the thumbs-up from a Roman Emperor, to present court-based methods of resolving disputes, the process is essentially the same – two (or more) parties to a dispute look to another to rule on who will win and who will lose.
Perhaps even more ancient is the tradition of resolving disputes by dialogue. In this model, the parties negotiate a settlement either themselves, or with the help of a neutral third party. The role of this individual, who has no direct interest in the outcome, is to help the parties to find their own solution to their problem. The range of methods of resolving differences outside court-based dispute resolution is known today as Alternative Dispute Resolution – ADR for short.
The knowledge and use of such methods is growing. Countries that have adopted ADR include US, UK, Australia, New Zealand, Singapore, Canada, Netherlands, Belgium, France, Austria, Germany, Italy, Czech Republic, Hungary, Poland and Bulgaria. These new approaches to resolving disputes can fairly be described as a global-wide evolution.
Out of Court Settlement in Russia
In the Russian Federation delay and uncertainty in getting results is a significant source of client dissatisfaction with legal services, according to a recent survey by Moscow regional bar association.99 per cent of respondents had not received advice from their lawyers on the opportunity of resolving a dispute through mediation. No one had received any literature on mediation and advice from their attorneys regarding the inclusion of mediation clauses in their contracts.
Companies are eager to mediate disputes, and lawyers who address these interests find they have more satisfied clients, and repeat business. The survey showed that 96 per cent of companies want the courts to suggest mediation prior to trial. They would like to see its introduction prior to proceedings being issued. It would appear that the message to law firms is clear – their clients want more information on mediation and, more importantly, want to mediate.
Throughout the Russian Federation, mediation is seen as a potentially promising mechanism for the resolution of both simple and complex disputes.
Mediation is seen as useful not only for small claims, auto accidents, family and employment disputes in court system, but also as an alternative dispute resolution device for the most complex matters.
«Moscow Regional Bar Association» opened its Arbitration and Mediation Centre (Moscow Regional Commercial Arbitration Court) in response to the inability of national court system to handle such disputes. The speed of change in strong national and emerging global markets puts increasing pressure on large business interests to resolve disputes quickly and inexpensively, as well as amicably, constructively and creatively, in order to maximize long-term interests and to maintain ongoing commercial relationships.
Litigants in system where there is little trust of judges generally may feel more comfortable with a formal, public, albeit more rigid, procedure.
Consequently, mediation may not be effective unless closely linked to other reforms that shorten the time to judgment.
All those of us involved in mediation believe that it is here to stay. At the end of the day it is an extremely successful way of helping people resolve their disputes. It is precisely because it works, and because it works in a high proportion of cases, that the future of mediation would seem to be secure. The question is how can this efficient process be made much more efficient and much more widespread?
My feeling is that the most important national priority is the development of mediation, in all types of dispute.
A very high proportion of disputes arise in the context of an existing community: be they neighbour disputes, landlord and tenant problems, consumer problems, medical negligence complaints and the like. These disputes arise locally and should, if possible, be resolved locally. One of the purposes of mediation is to enable those parties in dispute to resolve their problems for themselves without the imposition of “a solution” from above or from the outside; and by so doing to enable the individuals caught up with the disputes to repair, restore and sometimes to transform the pre-existing relationships. If, as someone has observed, most mediation is about helping people have difficult conversations, then there is every reason for encouraging those who supply mediation services to be as closely associated as possible with the communities from which most of the disputes will arise.
In 2003 the Federal Law «On arbitration courts»came into force. Compliance with this law, arbitration courts may be established by legal entities. Arbitration courts have authority to resolve disputes arising from different cases. Unfortunately, this law didn’t establish any rules about mediation and other ADR procedures except for arbitration.
As concerns the state courts procedures, both the Arbitration Procedural Code and the Civil Procedural Code contain no rules how to resolve dispute out of court. In civil proceedings a private mediator can not be appointed by the court but only a federal judge. Federal judges as a neutral third party have got no trust of litigants, because during a long time «corrupt administrative system» has made citizens take illegitimate, unfair judgments based on decisions from «above» (for example it was resorted to in YUKOS Oil Company case). There are no court mediation programs and a lot of people (include legal practitioners) never heard about Alternative Dispute Resolution. ADR services have never been used by the state courts.
Another problem is that under the Russian legislation state officials have got no rights to resolve disputes through ADR proceedings.
As a result of a committed offence a person caused damage to the State, but during investigation the person (or his/her friends, relatives) compensated the sum of damage.
Officials in such a case have to transmit the case to the court to stop accusation. Only the court has authority to resolve this issue.
Russian citizens are waiting significant reforms of prosecution system, perhaps the new Attorney General and his team will be able to carry it out.
There are proposals currently being considered by some members of the Parliament (State Duma), but a result of this process is long and unpredictable, because there aren’t mediation associations in the Russian Federation which would be able to push this bill through the State Duma and maintain the development of mediation.
There are at present about 500 independent arbitration groups(courts) operating across the Russian Federation who aren’t members of any association and there is no connection between them.
I am currently involved in a pilot project in Moscow, part of the object of which is to see whether the ideas set out in this paper work in practice. The goal of the project is to establish modern, accessible, affordable and effective alternative dispute mechanisms in the Russian Federation.
To put in place solid foundations for the development of mediation in Russia, the Implementation Phase, which will be begun in September 2006, is focusing on
- the need for new legislation, in compliance with international standards,
- training programmes to familiarise users with the processes involved, and create a body of skilled mediators,
- making relevant professionals and the public aware of what is possible, and
- setting up pilot programmes in selected areas.
For these purposes we are planning follows:
- foundation of non-commercial, non-governmental mediation association which will include a number of arbitration courts’ representatives, scientists and legal practitioners who are ready to develop mediation mechanisms. Its mission is to strengthen the community and prevent future conflicts by enhancing access to justice, promoting public safety, and encouraging communication and understanding, foundations, corporations and individuals;
- initiation of conferences and seminars in different regions of the country with participation of ADR specialists from the United States of America;
- to involve Russian law schools in process of creating mediation classes, for purpose to train qualified mediators on a regular basis;
- publishing books, articles and other literature on ADR;
- creating WEB-sites and Video-programs;
- establishing association’s offices in largest cities of the Russian Federation;
- developing fruitful cooperation with leading American ADR institutes such as American Arbitration Association and National Association For Community Mediation, and creation close connection between two countries and their legal systems;
- conducting research projects in area of dispute resolutions;
- exploration and developing opportunities for funding pilot projects from different sources;
- improving quality and consistency in statistical information about ADR in courts and agencies providing ADR services
- seeking opportunity of government lobbing
This will increase (not frustrate) the ability of judges to serve society in the brilliant expression of public judgements and normative pronouncements. Internal evaluative methodologies can be easily adjusted to include the entire caseload and to distinguish the quality of adjudication from the mere quantity of legal dispositions.
Second, lawyers increasingly realise that the compensation they receive is a function of the value they provide in service to clients. If the system is slow and ineffective, the value of a legal service is substantially discounted by the time value of money or improbability of enforcement. More timely and effective systems allow lawyers to extract greater social value from the judicial system for their clients, and that enhances their professional incomes. Furthermore, with the growth of mediation, lawyers learn to practice (and at a later stage charge handsomely) for mediation services (both as neutrals and as lawyers representing clients engaged in mediation). Thus, despite the perception of a short-term threat, mediation is in the long-term interest of the bar.
Third, litigants have grown to prefer mediation over trial. The parties have a much greater role in shaping both the process and the outcome. Litigants often save time, money, and the stress of uncertain and protracted trial processes. The exclusive control of litigants in the final resolution evaporates any initial concern about corruption of the process. The ability to preserve and at times enhance the relationship (e.g., business or family) with a former adversary is an especially attractive advantage of mediation.
Fourth, for all of these reasons, scholars and public opinion leaders have grown to appreciate the pressing need for creative solutions and in particular the value of mediation in achieving justice reform. Compared to the commonly dysfunctional court process, mediation represents a powerful remedy that actually enhances the power and effectiveness of the courts to perform their core functions.
I am sure it will be very important step to democracy in our country.
Development Plan (deadline September 2008)
At the beginning of the Implementation Phase we have an office in downtown of Moscow.
September 2006 - January 2007
Preparation of national conference on Alternative Dispute Resolution;
Finding and hiring executive staff of the mediation association;
Creating WEB-sites, writing and publishing articles;
Negotiations with representatives of Russian and American law schools and universities;
Recruiting community residents to become trained mediators;
Meetings of legal practitioners and state authorities
January 2007 - February 2007
the First national conference on ADR where the mediation association will be established;
February 2007 - May 2007
Establishing offices in following cities: Smolensk, Krasnojarsk, Barnaul, Kursk, Volgograd;
Elaboration of main principals, techniques and methods of ADR in the Russian Federation
Preparing Summer Courses in Dispute Resolution
May 2007 - September 2007
Summer Courses in Dispute Resolution;
Class locations in Smolensk, Krasnojarsk, Barnaul, Kursk, Volgograd;
Special emphasis will be given to the understanding of the Mediation Process and its place within the ADR structure. Elements of the program include the nature of conflict, facilitative method of dispute resolution, understanding values and relationships embedded within the dispute resolution process, ethical standards of practice, the role of the mediator, creating safe harbors and how to bring about mutually satisfactorily solution;
These seminars will explore the dynamics, benefits, constraints, and skills needed in third-party intervention in the settlement of disputes. It examines mediation as a collaborative process of resolving conflict and considers legislative, ethical, and practical limits on its use. Through discussions, simulations, and role-playing, the course focuses on the skills a mediator needs to facilitate a constructive resolution of conflict.
Providing ADR services to community;
Elaborating of amendments to the Arbitration Procedural Code and the Civil Procedural Code
September 2007 – February 2008
Cooperation with the Joint Russia Party (this is the leading political party in the country) and the Ministry of Justice for purpose to push amendments through the State Duma;
Popularisation ADR procedures in the Russian Federation
February 2008 – May 2008
The Second national conference on ADR;
negotiations on possibility to put in ADR in universities’ comprehensive programs;
May 2008 - September 2008
Summer Courses in Dispute Resolution
Summary of the project