Developing national mediation: financial services as the potential field of applicationОпубликовано: 26.02.2018
While the European Parliament issues resolutions on application of Directive 2008/52/EC of the European Parliament and Council dated May 21, 2008 regarding certain aspects of mediation in civil and commercial cases, we continue the examination and evaluation of potential fileds of its application at our own risk and peril.
Recent measures with participation of professional mediators from all over the Russia prove high demand for the procedure in the social area, in family law issues, in situations connected with protection of children rights.
Since 2008 I by some quirk of fate have been a judicial representative for specific category of the population, which also needs the operating tool of extrajudicial settlement of disputes — individuals consuming financial services as well as borrowers representing small and medium business.
As a rule the situation is developing in a standard manner — an individual or entrepreneur selects another «reliable» bank, takes the credit and for some reason faces the inability to fulfil the undertaken obligations. According to the financial or legal literacy the debtor notifies the creditor of the problems in an obvious way and then the situation develops without a hitch. The court, decision, recovery of debt with the help of bailiffs or collectors — no other option seems to be available in such case.
Going back to personal experience — start negotiations with the bank and be as open as possible with consistent documentation of your actions.
Being the judicial representative of the debtor I, in fact, have been mediating the debt recovery procedure from 2008. Upon receipt of the first of several court judgements in 2009 I initiated negotiations with the bank and proposed to consider the possibility of extrajudicial settlement of the dispute. That was an official proposal considering the market evaluation of the pledged property provided by an unemployed pensioner to secure the USD credit, which foreclosure by the bank was rejected by the court.
The message seemed obvious — why go to the court if one can sign the agreement on compensation and close the case «in advance».
In the specific case due to significant amount of debt or operation of other prevailing «internal instructions» of the bank the creditor preferred to continue the judicial proceedings.
Now, after 10 years, these are lasting proceedings of postmortal bankruptcy of an individual — debtor and bankruptcy of an individual — guarantor. The latter — by reason of banks’ refusal to accept the documents on termination of enforcement proceedings as a proof of insolvency as well as pronounced lack of time and human resources for initiation and conduct of bankruptcy procedure.
Banks as well as courts are overloaded.
In such situations the questions of adequate protection of debtor’s rights, literacy in negotiations with his participation is of particular importance in the Russian legal system.
Indeed one may speak about the quality of legal representation, use of «enforcement» resources peculiar for our legal culture — inspections were initiated by the Russian Federation Central Bank, the applications were sent to the Public Prosecution Office of the Russian Federation which did not have the expected effect. As well as lawsuits on termination of the credit contract, endless complaints on rulings and judgements of the courts on determination of the value of property to be realized, invitation to offer before settlement of the issue on determination of value of the pledged property on the merits.
What do we have at the end? The bank receives minimum repayment from the value of the postmortal realization of the debtor’s property, which is several times less than its evaluation and value of borrower’s offer in 2010.
How effective has such solution of the issue become for the bank? Following our position, expressed from year to year by representatives behind the scenes of judicial authorities, the only purpose of the processes was the return of monetary assets — in fact the debtor has not paid a single ruble in repayment of the debt since 2008. The bank got the apartment at reduced value in 2009 and funds from the sale in public auction of the remaining property in 2017 — the amounts, which did not cover even a half of existing debt.
How could the «open dialogue», which I am promoting, be helpful in the situation?
In the case under consideration it could be helpful in elaborating the way to settle the issue acceptable for both parties.
For all other projects — formed the invaluable experience in observing the work of bank representatives allowing selection of optimal ways to resolve legal issues in the field of financial services. In particular, in the recent proceedings concerning recovery of debt under credit from debtor’s heirs, one managed to persuade the bank representative to change the suit for the benefit of the debtor — adding requirements to terminate the credit contract (for the avoidance of additional interest on the amount of debt), reduction of amount of interest accrued on the amount of debt, cancellation of penalty interest. Outside the court hearing my procedural opponent confirmed that such movement «towards» the interests of heirs was conditioned, in particular, by active dialogue between the parties and their judicial representatives.
Moreover I received interesting experience, which made it possible for me to participate in interesting and prospective projects for development of related specialized mediation, e. g. in the work of the Commission for Application of Mediation Procedure (alternative procedure for settlement of disputes with participation of an intermediary) in the financial market of the Russian Federation of the Guild of Financial Analysts and Risk Managers (the «Mediation Commission»).
The key objectives of the Mediation Commission are:
- popularization of mediation procedure in the financial market of the Russian Federation and in the field of financial services;
- increased level of trust in alternative method of dispute settlement;
- arrangement and performance of mediation procedure with representatives of the Russian Federation financial market, consumers of financial services;
- ensuring efficient communication between expert community and representatives of small and medium business, starting dialogue through organization of communication grounds, educational projects, workshops, participation in specialized conferences.
The priority areas of concern of Mediation Commission are establishment of comfortable environment for discussion with representatives of state authorities, academic institutions, financial institutions and organizations of important issues, connected with operation and development of the Russian Federation financial market, active application of extrajudicial procedures in settlement of issues in conflict situations arising in the financial market.
Despite short period of its existence the Mediation Commission is actively processing the applications of consumers of financial services for initiation of mediation within judicial proceedings and preparation thereof, develops cooperation with associations of professional participants of security market in the field of information, outreach, consulting, legal, research and development activities.
In conditions of heavy load of the judicial system, banks and collectors, actual «freezing» of draft laws governing activities of financial ombudsmen, the Mediation Commission shall become the starting point of professional mediation in the field of financial markets and financial services.
 The Resolution of the European Parliament in Russian is available at: https://alexandra-andreeva.com/2017/11/28/%D1%80%D0%B5%D0%B7%D0%BE%D0%BB%D1%8E%D1%86%D0%B8%D1%8F-%D0%B5%D0%B2%D1%80%D0%BE%D0%BF%D0%B5%D0%B9%D1%81%D0%BA%D0%BE%D0%B3%D0%BE-%D0%BF%D0%B0%D1%80%D0%BB%D0%B0%D0%BC%D0%B5%D0%BD%D1%82%D0%B0-%D0%BE/