Institute of Mediation: current state and development prospects.

Kel'manzon Il'ya Maksimovich Postgraduate student; Department of Civil and Corporate Law; St. Petersburg State University of Economics 197082, Russia, Saint Petersburg, Turistskaya str., 28, building 1, sq. 3 kelmanzon@yandex.ru

In accordance with Article 45 of the Constitution of the Russian Federation, the protection of the rights and legitimate interests of citizens is guaranteed. In order to fulfill this guarantee, jurisdictional and non-jurisdictional regulation is used and various conciliation procedures, including mediation, are applied.

Mediation (from Latin. "mediatio" - "mediation") is one of the types of pre–trial dispute resolution, the feature of which is mediation, the assistance of a third party (a professional mediator) to achieve consensus between the parties, and as a result, conflict resolution. This institution appeared in domestic legislation relatively recently – in 2011 with the entry into force of Federal Law No. 193–FZ dated 07/27/2010 "On Alternative Dispute Settlement Procedure with the participation of an intermediary (Mediation Procedure)" (hereinafter – the Law on Mediation). The main purpose of this law was to implement measures aimed at increasing the number of cases of voluntary dispute settlement and, as a result, reducing the burden on the judicial system as a whole ^{[1, p.104]}.

Prior to the adoption of this law, in the modern history of the Russian Federation, there was already an example of an attempt to organize education and training for the nascent mediation system – the creation of a joint Russian-American program on conflictology, through which a significant contribution was made both to the development of the practical application of mediation in St. Petersburg and to the training of the first professional mediators in the Russian Federation. Later, in 1993, the Conflict Resolution Center (CRC) was established, and in February 2005, with the support of the Presidential Administration of the Russian Federation, the 1st International Conference "Mediation. A new step towards building a rule-of-law state and civil society." Since 2006, the journal "Mediation and Law" has also been published for more than 10 years ^{[2, p.56]}.

In general, the period before adoption in 2011 The Law on mediation and the first "five-year period" after it can be confidently called a period of "euphoria". The practical problems of the institute under discussion did not immediately become apparent.

The adoption of the above-mentioned law on mediation procedure is directly correlated with the global trend towards the development of pre-trial dispute settlement institutions ^{[3, p.104]}. In accordance with Part 1 of Article 1 of the Law on Mediation, the widespread use of mediation will allow to achieve an increase in the level of ethics of business turnover, the development of business partnerships and the general harmonization of social relations. At the time of adoption, there were all reasons to believe that this was feasible.

The study of the current state of the mediation institute, as well as its current problems and possible ways of development, within the framework of this study will allow: firstly, to assess in retrospect the need to introduce mediation procedures into the legislation of the Russian Federation; secondly, to assess the degree of influence of the changes introduced by the legislator earlier on the part of their effectiveness and necessity; thirdly, to highlight the existing problems of the institute and, based on the established scientific and statistical base, suggest possible ways to overcome them.

Before proceeding directly to the problems of this type of pre-trial settlement of a dispute at the present stage of its development, it is necessary to determine its essence. By its nature, a mediation procedure is a special form of mediation, as well as a special form of reconciliation. With the help of this procedure, through the use of the help of an independent person (mediator), the conflict is resolved in a voluntary form. According to the Doctor of Law, Professor V. F. Yakovlev, mediation is one of the constituent elements of the conciliation procedure, the purpose of which, as mentioned above, is to eliminate obstacles to reaching consensus between the parties to the dispute. In accordance with the professor's beliefs expressed back in 2007, mediation can be applied both within the framework of the process (arbitration and civil), and as a separate independent procedure.

A similar position is held by the Candidate of Law A. A. Maksurov, who supports the position of presenting the mediation procedure both as a separate dispute resolution mechanism and as one of several tools. It is worth noting that this position is practically confirmed: 1) In our country, there are Regulations of the Board of Intermediaries for conducting Conciliation Procedures at the Chamber of Commerce and Industry of the Russian Federation, which is designed to regulate the rules of organization and application of the procedure under study to resolve disputes between entrepreneurs and other participants in economic activity (Regulations on the Board of Intermediaries for conducting Conciliation Procedures at the Chamber of Commerce and Industry of the Russian Federation // https://mediation.tpprf.ru/ru/docs/). 2) Examples of the use of mediation as a dispute resolution tool are Orders of the Government of the Russian Federation dated 05/29/2015 No. 996-r "On Approval of the Strategy for the Development of Education in the Russian Federation for the period up to 2025", as well as dated 08/25/2014 No. 1618-r "On approval of the Concept of State Family Policy in the Russian Federation for the period up to 2025". Within the framework of the first order, the need for the development of separate methods of mediation for conflict resolution in the children's environment and the educational process is noted, while within the framework of the second – the need to introduce mediation to achieve consensus in family law disputes.

Despite the fact that in foreign countries where similar laws were adopted, there was a general decrease in the number of appeals to judicial authorities ^{[4, p.57]}, there was a strong opinion in the domestic scientific community that the above-mentioned law on mediation was not so much able to resolve existing problems and controversial issues in the institute under study as systematized the practical component ^{[5, p.25]}.

In accordance with the current legislation, the parties to the dispute can seek help from a mediator at any stage: both before applying to the judicial authorities, and directly within the framework of the already initiated process. As a result of contacting the mediator, the parties can come to a consensus that suits everyone or continue their dispute.

A lot of talented legal scholars have been and are studying mediation as a conciliation procedure: E.I. Nosyreva, L.B. Sitdikova, A.L. Shilovskaya, R.Y. Bannikov, as well as other researchers whose works are mentioned in this article. It is also worth noting that due to the regular introduction of innovations by the legislator to the institute under study, as well as the unflagging interest in it from the scientific community, the currently available research (including those of the listed authors) needs constant replenishment.

At the present stage of its development, the institute of mediation in the Russian Federation has many problems that prevent its further evolution ^{[6, p.19]}. Based on the available practice, as well as an array of scientific publications on the topic under study, several main problems of the mediation institute can be identified that hinder its systematic development.

One of the important problems that is currently very much "slowing down" the institution under discussion is the lack of awareness of participants in civil turnover (i.e. potential "users") about the possibility of using mediation in certain cases, as well as the lack of a clear understanding of the nature and consequences of using this procedure.

V. V. Lisitsyn noted almost a decade ago the actual absence of mediation advertising in the domestic legal field ^{[7, p.28]}. The opinions of the scientific community speak about the following reasons for this situation: 1) the number of normative acts regulating this institution; 2) weak state assistance in popularizing mediation ^{[8, p.90]}. 3) As a result, there is a lack of the necessary number of properly trained mediators, as well as a minimum of information about the mediators themselves and their level of competence.

The problem of the small number of trained mediators ^{[9, p.646]}, as well as information about the procedure and the mediators themselves, has long been discussed among legal scholars ^{[10, p.25]}. In accordance with Article 15 of the above-mentioned law, any capable, adult person who has not been convicted can act as a mediator. Due to the fact that the kind of "qualification" for joining the ranks of mediators was quite low (the candidate needed to have an appropriate higher education and professional training. In addition, no other achievements or requirements were expected), then people who were not fully prepared for conducting conciliation procedures began to enter it. To this end, back in 2019, the law was amended in order to increase confidence in mediators by allowing retired judges to become the last, which, from the author's point of view, is a logical step – no matter how a judge can impartially bring the conflicting parties to a consensus.

Another "painful" point of the Law on Mediation is the issue of professional education of mediators. In accordance with Article 16 of the Law, in order to carry out professional activities, a potential mediator, in addition to higher education, must also have additional professional education regarding the application of mediation procedures. In contrast to, for example, the European Code of Conduct for Mediators (the European Code of Conduct for Mediators, adopted on 06/02/2004 // https://mediation-eurasia.pro/wp-content/uploads/2018/04/evropejskij-kodeks-povedenija-dlja-mediatorov.pdf) , which has only a recommendation value for the Russian Federation. It is also not disclosed exactly what level of the above–mentioned additional education a potential professional mediator is required to have. For help, you can turn to the Model Law on Mediation: based on Part 2 of Article 11 of this Law, a professional mediator can carry out his activities only after completing training in the mediator training program and obtaining a special certificate of qualification of a mediator (Model Law on Mediation (out-of-court Dispute Settlement), adopted in St. Petersburg on 11/29/2013 by Resolution 39-14 at the 39th plenary meeting of the Interparliamentary Assembly of the CIS Member States // https://mediator.uz/mediaci/148-modelnyj-zakon-o-mediacii-vnesudebnom-uregulirovanii-sporov.html ). But this format does not comply with current legislation in the field of education – the available acts indicate that within the framework of additional professional education it is possible to obtain only a diploma of professional retraining or a certificate of advanced training (Order of the Ministry of Education and Science of the Russian Federation dated 07/01/2013 No. 499 (ed. dated 11/15/2013) "On approval of the Procedure for organizing and implementing educational activities for additional professional programs" // https://www.consultant.ru/document/cons_doc_LAW_151143 /, Letter of the Ministry of Education and Science of the Russian Federation dated 03/12/2015 No. AK-610/06 "On the direction of methodological recommendations" (together with "Methodological recommendations on the development, issuance and accounting of documents on qualifications in the field of additional vocational education") // https://www.consultant.ru/document/cons_doc_LAW_177814 /).

Currently, the training of mediators in the Russian Federation is divided into 3 stages: basic, special, and coaching. Upon completion of each of these stages, the mediator is issued an appropriate document confirming the completion of the stage, namely, a certificate. At the same time, it is allowed to receive a diploma of professional retraining (training of a mediator) only after passing all the stages of preparation and successfully passing the exam.

In the light of all the above, it seems that the legislator in Article 16 of the Law on Mediation needs to move away from a broad interpretation of this norm and clearly indicate the necessary level of additional education for mediators and, possibly, the type of document that would confirm education. For example, leave an indication that only persons who have a diploma of professional retraining and appropriate qualifications can conduct mediation on a professional basis. If this is not done, then organizations that organize mediation procedures will be able to continue, at their own request, to establish the level of education necessary for mediation, even if the potential mediator does not have a diploma of professional retraining, but only a certificate of one of the previous levels.

Some authors have been suggesting for quite a long time, by analogy with the communities of lawyers or notaries, to consolidate the special principle of competence of the mediator's professional activity ^{[11, p.30]}. This principle is in correlation with the European Code of Conduct for Mediators mentioned above. In accordance with the Code, mediators must have the necessary and in–depth knowledge in the field of mediation and possess appropriate competencies. This cannot be achieved without constant improvement of their professional qualities, development of theoretical and practical skills, etc.

The introduction of the voiced principle into legislation will increase the importance of the process in the eyes of potential participants in the mediation procedure, as well as increase confidence in the mediator himself as a trained professional who is responsible. Moreover, this principle will fully comply with the meaning of Article 45 of the Constitution indicated at the beginning of this work.

A problem closely related to the previous ones is the lack of guarantees from the state for the enforcement of a mediation agreement that was previously reached between the parties. Thus, the execution of a mediation agreement directly depends on the good faith and diligence of the parties, which once again explains the low popularity of this institution, since potential participants in the procedure objectively worry about the future execution of the adopted act.

In 2019, the legislator made a correct attempt to solve this problem by introducing the possibility of certifying the concluded mediation agreement with a notary, which gave the agreement the force of an executive document. In this case, I would like to additionally emphasize that in this work the author examines precisely the non-jurisdictional pre-trial mediation agreement, which is concluded by the parties to the dispute immediately before applying to the judicial authorities (in accordance with Part 4 of Article 12 of the Law on Mediation). In accordance with this norm, such an agreement is by its nature a civil law transaction.

The possibility of notarization of such an agreement between the parties: firstly, it corresponds to the international principles of the enforceability of mediation agreements; secondly, it contributes to the greater use of professional mediators with the appropriate level of qualification, because if the pre-trial mediation agreement was poorly drafted, violates the law or the rights and interests of other persons, then the notary has the full right to refuse to certify such an act.

As a result, the provided notarial control over the parties' compliance with the mediation agreement and the requirements that apply to such an agreement allow, on the one hand, to increase the enforceability of the concluded agreement ^{[12, p.186]}, and on the other, to make the possibility of executing the agreement dependent on the thoroughness of its drafting, which in turn requires an appropriate level of knowledge from a professional mediator.

At the moment, the state has taken measures aimed at popularizing the institution of mediation, as well as increasing confidence in professional mediators conducting the procedure (including financial incentives through partial refund of state duty when applying to mediation), but now we are seeing record low rates of mediation use, starting in 2012.

According to the Report of the courts of general jurisdiction on the consideration of civil and administrative cases in the first instance for 2021-2022, the citizens of our country are less and less actively resorting to mediation in dispute resolution from year to year. According to statistics: in 2020, 0.5 thousand mediation agreements were concluded (0.2% of all terminated cases); in 2021, 0.2 thousand (0.1%); in 2022, even less – 367 (0.1%) (Report on the work of courts of general jurisdiction on the consideration of civil and administrative cases on of the first instance // http://cdep.ru / index.php?id=79&item=7645). Moreover, the statistics become even more depressing if we point out that there were 24,912,959 cases that were completed with a court order in 2022. Compared to the number 367, there is a huge difference.

Within the framework of the same statistics, it is necessary to mention the application of the mediation procedure introduced in 2019 using judicial conciliators: at the moment, only 0.13% (437) of cases have been terminated using them. The extremely low popularity of this type of dispute settlement is also indicated by the fact that at the time of writing this article (2024) 3 and 5 judicial conciliators are operating in Moscow and St. Petersburg, respectively (List of judicial conciliators // https://vsrf.ru/documents/own/28689 /).

However, the above statistics regarding the use of mediation were not always the same: 06/22/2016 The Presidium of the Supreme Court of the Russian Federation approved the Certificate of the Supreme Court of the Russian Federation "On the practice of application by Courts of Federal Law No. 193-FZ dated July 27, 2010 "On alternative Dispute Settlement Procedure with the participation of an intermediary (mediation procedure)" for 2015". According to the document, out of 15 million cases considered in the framework of the first instance, only slightly more than 1,000 (0.007%) were resolved using the mediation procedure. In accordance with the above-mentioned Certificate on the practice of applying the law by courts, "in 2015, 1,531,473 applications were considered by the arbitration courts of the subjects of the Russian Federation. In 2015, the mediator was involved by the parties in the consideration of only 44 cases, of which only in 7 cases the court approved a settlement agreement, and in 37 cases the plaintiff filed a waiver of the claim or the claim was recognized by the defendant" (Certificate on the practice of application by courts of Federal Law No. 193 dated July 27, 2010-Federal Law "On alternative dispute settlement procedure with the participation of an intermediary (mediation procedure)" for 2015 // https://www.consultant.ru/document/cons_doc_LAW_200160 /). At the same time, compared to 2014, the number of cases where mediation was used decreased, which once again indicates insufficient "propaganda" of the use of mediation by the state.

Due to the objective decrease in interest in the mediation procedure, parliamentary hearings on mediation were held in the State Duma of the Russian Federation on April 13, 2023 (Parliamentary hearings were held in the State Duma on April 13, 2023 on the topic: "The use of mediation and mediation technologies in socially significant areas (restorative and family mediation)" // http://No.7 2023 [YUN]180komitet2-6.km.duma.gov.ru/Novosti_Komiteta / item/28489739/). As part of these hearings, statistics were provided, which for the period from 2015 to 2021 indicated the number of disputes settled through mediation. In general, these statistics correlate with the data provided in the article above (the peak of mediation use is 2017 and 1,407 disputes, the minimum is 2021 and 724 disputes, respectively). The participants of the hearings came to a disappointing conclusion about the decrease in interest in the mediation procedure, and at the same time this decrease is of an annual systematic nature. With this in mind, the causes and consequences of the current situation of domestic mediation have been identified: 1) a fairly low "qualification" for obtaining the status of a professional mediator; 2) as a result – the entry into the market of a large number of poorly trained specialists discrediting the institute; 3) weak state supervision of the activities of mediators due to the lack of a specialized body; 4) despite the previous problem – the low role of SRO professional mediators in 5) due to the absence of a specialized state body responsible for the institute of mediation, the actual information "silence" regarding the essence of mediation, professional mediators, their organizations, etc.; 6) imperfection in the system of execution of mediation agreements (the possibility of fraud when certifying a document through a notary).

According to the results of the hearings, it was also concluded that the emphasis on the SRO of professional mediators in regulating the institute without the support of a specialized state body did not justify itself, as can be seen from the results of 13 years of practice (Mediation in the Russian Federation // http://komitet2-6.km.duma.gov.ru/upload/site8/document_news/028/489/709/Prezentatsiya_Gosduma_-_07.04.2023.pptx). Based on this, a proposal was put forward to tighten the requirements for mediators and complicate training programs (including the development and implementation of uniform standards and norms of ethics), moreover, it was even proposed to legislate cases when the mediation procedure would become a mandatory pre-trial procedure prior to going to court. All this involves making serious changes or a complete revision of the current law "On Mediation in the Russian Federation".

Despite the actual agreement of the legislator that at the present stage of its development, the institute of mediation needs to be improved, there is an alternative opinion in the scientific community that the reason for the decline in popularity of the procedure lies not so much in the plane of imperfection of the regulatory framework or weak education about the advantages of the procedure, but in low legal culture and literacy the overwhelming number of our compatriots who firmly believe that only an appeal to the judicial authorities can quickly and, most importantly, officially solve their problems ^{[13, p.178]}.

In the light of the above, back in 2021, Draft Law No. 1138398-7 "On Amendments to the Law of the Russian Federation "On Consumer Rights Protection" and the Federal Law "On Alternative Dispute Settlement Procedure with the Participation of an Intermediary (Mediation Procedure)" was submitted to the State Duma of the Russian Federation. According to the plans, the adoption of this bill will form the necessary legislative framework for the functioning of a special system of alternative online dispute resolution mechanisms in the Russian Federation. At the moment (2024), consideration of the draft law in the State Duma in the second reading has been postponed (Draft Law No. 1138398-7 On Amendments to the Law of the Russian Federation "On Consumer Rights Protection" and the Federal Law "On Alternative Dispute Settlement Procedure with the Participation of an Intermediary (Mediation Procedure)" // https://sozd.duma.gov.ru/bill/1138398-7 ). In general, the formation of an online dispute resolution mechanism (albeit so far in certain areas: in the field of consumer protection in online commerce) corresponds to the concept of digitalization of the entire life of society, and can also partially solve the problem of a lack of information regarding the mediation procedure ^{[14, p.51]}. According to the author, the introduction of a mandatory mediation procedure in such a massive sphere as online commerce (which includes, for example, marketplaces) can become a kind of "springboard" for the institute of mediation, will allow it to gain popularity, as well as fulfill its function as a pre-trial way of settling a dispute in order to unload the judicial system.

Summarizing all of the above, starting in 2019, our state has taken the right course to update the legislative framework of the mediation procedure. The adoption of amendments, bills or completely new laws will allow people to regain their faith in pre-trial settlement. The author is convinced that, first of all, it is necessary to work out the possibility of introducing mandatory pre-trial mediation, as well as to develop additional economic incentives from using this procedure.