ADR in Russia: is there hope for mediation?Опубликовано: 19.05.2017
Once in a while I hear different aims stated by clients seeking court representation in Russia.
They wish to thereby restore justice “as quick as possible”: to right a wrong/ to punish/ to find emotional balance/to cause troubles – you name it.
“What’s our state court got to with it?” — I ask in response.
Each and every time I explain, how and why Russian state court system is not up to expectations.
Court room is not a psychological help center. The judge won’t serve justice based on your personal history of hardship, no matter how dramatic the situation\ consequences.
Court is no legal clinic. The judge won’t construe the legislation for the claimant, but will expect that being done by the either of the parties of the case , up to drafting judicial acts for the court .
Last but no least – no soon dispute resolution.
The public rating demonstrates the ugly truth on efficiency of the Russian state commercial (arbitrage) courts resolving economic disputes and cases related to the exercise of entrepreneurial and other economic activities. The legal society recognized the Commercial (Arbitrage) court of Moscow as the worst, leading on such parameters as frequency of losing the proceedings case files, delays, mistakes in court awards and writs of execution for the enforcement of awards. It is no surprise, however, since the same agree that each of the judges of the named court has more than ten cases per day, often works past midnight for low salary. Not the best conditions to serve justice at all.
The Russian court system problems are no secret for both the government and the legislatures, based on the national proceedings law development for the last five years, aiming at introduction and development of dispute resolution alternatives.
First of all, the Federal law of the Russian Federation “On alternative dispute resolution with an intermediary (mediation)” came into effect on January 01, 2011, granting the parties the possibility to resolve cases related to the exercise of entrepreneurial and other economic activities outside the court.
On June 01, 2016, an imperative pre-trial claim procedure was introduced for certain types of economic disputes. The amended article 4 of the Russian Commercial Procedure Code now states the case can only be filed to the court following 30 days from the date the pre-trial claim was sent to the potential defendant. The proceedings shall be initiated provided the claimant amongst all provides the court with evidence it made an effort to settle outside the chambers.
On September 01, 2016, the Federal law “On arbitration in Russian Federation” came into effect, which was elaborated aiming to further develop and increase the efficiency of arbitration as a form of alternative dispute resolution amongst entrepreneurs. For instance, as from February 01, 2017, certain categories of corporate disputes can now be subject to arbitration agreements, provided the requirements of cl.3-4, art. 225.1 of the Russian Commercial Court Procedure are met.
As a result, our clients have at least two alternatives to court – arbitration and mediation — officially recognized by the state, and an imperative to at least try pre-trial settlement.
Of these procedures, in my opinion, mediation is a better fit to grant the conflicting parties the closure or that “personal justice” they by mistake seek in court.
Mediation ensures the parties control the procedure of resolving the dispute they own, to the best possible personal outcome and interest of each, aiming at solving and healing the relations whenever possible, keeping the participants at liberty to elaborate any mutually beneficial solution within the legal framework.
Despite all the “pro’s”, the official statistics of the Supreme Court of the Russian Federation states low interest in the procedure based on the quantity of mediated disputes.
From the one hand, the purpose and terms of mediation leave it out of the official sight. No one can say for sure how many cases are in fact settled by mediators out of the courts, in the course of pre-trial negotiations.
From the other hand, there are some obstacles to its development, which were once again stated by the competent society in the course of the two-day conference “Mediation: theory, practice, development perspectives” held in Moscow on April 13-14, 2017.
For example, mediation is not recognized by the Russian Civil Procedure Code as the justification for suspension of the court proceedings. It means that the civil courts, resolving highly mediable family and labour disputes, when seeing the parties off to mediation, face the inevitable violation of the imperative two-month term set for case resolution by the law, should the parties not come to an amicable solution.
Another issue is that neither the law, nor the Russian court practice recognize the costs of mediation as expenses which can be reimbursed.
Under the Russian law mediation is not an obligatory procedure to the increasing disappointment of the professional community. A range of speakers agreed on the necessity to introduce imperative mediation for disputes arising from family, labour, corporate disputes.
Other outlined legal flaws include absence of any online mediation regulation and no possibility to enforce the mediative agreement.
Besides shortcomings of the regulation the low level of awareness of the population lays in the way of mediation development. It is understood that as of the day the state courts are the key to popularization of this procedure, but the obligation of the judges to explain to the parties their right to mediation often remains a formality.
The hopes of the mediators now lay with the bills introduced by professional organizations, suggesting to introduce amendments to the Russian laws on mediation, both much awaited, like suspension of proceedings for the term of mediation in the civil courts, and surprising, like abolishing the so-called “non-professional mediation”.
Until then Russian mediators are on their own, keeping the parties from the grindstone of the Russian court system, holding the torch for those who seek an actual dispute settlement, not revenge or closure.