About mediation

 

The Law of the Republic of Kazakhstan dated January 28, 2011 No. 401- IV

This Law regulates public relations in the field of mediation organization in the Republic of Kazakhstan, defines its principles and procedure, as well as the status of mediator.

 

    Chapter 1. GENERAL PROVISIONS

     Article 1. The scope of mediation 

1. The scope of mediation is disputes (conflicts) arising from civil, labor, family and other legal relations with the participation of individuals and (or) legal entities, as well as those considered during criminal proceedings in cases of crimes of light and medium gravity, criminal offenses unless otherwise established by the laws of the Republic of Kazakhstan, and relations arising from the execution of enforcement proceedings.
2. The mediation procedure does not apply to disputes (conflicts) arising from the relations referred to in paragraph 1 of this article, if such disputes (conflicts) affect or may affect the interests of third parties not participating in the mediation procedure and persons recognized court incompetent or partially capable.
3. The mediation procedure does not apply to disputes (conflicts) arising from civil, labor, family and other legal relations involving individuals and (or) legal entities when one of the parties is a state body. 4. The mediation procedure is not applied in criminal cases of corruption offenses and other crimes against the interests of public service and public administration.

     Article 2. Basic concepts used in this Law

     The following basic concepts are used in this Law: 1) an agreement on the settlement of a dispute (conflict) - a written agreement of the parties reached by them as a result of mediation; 2) a mediator - an independent individual involved by the parties to conduct mediation on a professional and unprofessional basis in accordance with the requirements of this Law; 3) association (union) of mediators - an organization created in order to coordinate the activities of organizations of mediators, as well as to protect their rights and legitimate interests; 4) mediator organizations - non-profit organizations created to unite mediators on a voluntary basis to achieve their common goals for the development of mediation, not contradicting the legislation of the Republic of Kazakhstan; 5) mediation - a procedure for the settlement of a dispute (conflict) between the parties with the assistance of a mediator (mediators) in order to achieve a mutually acceptable solution, implemented by voluntary consent of the parties; 6) parties to mediation - subjects of relations specified in clause 1 of Article 1 of this Law participating in the mediation procedure; 7) mediation agreement - a written agreement of the parties concluded with a mediator in order to resolve a dispute (conflict) prior to mediation; 8) mediation participants - the mediator and the sides of mediation.

    Article 3. Objectives of mediation

     The objectives of mediation are: 1) to achieve the option of resolving a dispute (conflict) that suits both sides of mediation;

                                                              2) a decrease in the level of conflict between the parties.

     Article 4. Principles of conducting mediation

     Mediation is based on the principles of: 1) voluntariness;

                                                                         2) the equal rights of the parties to mediation;

                                                                         3) the independence and impartiality of the mediator;

                                                                         4) inadmissibility of interference in the mediation procedure;

                                                                         5) confidentiality.

    

       Article 5. Volunteer

1. The condition for participation in the mediation procedure is the mutual voluntary will of the parties expressed in the mediation agreement.
2. The parties to mediation have the right to refuse mediation at any stage.
3. During mediation, the parties have the right, at their discretion, to dispose of their material and procedural rights, increase or decrease the amount of claims, or refuse a dispute (conflict).
4. The parties are free to choose questions for discussing options for a mutually acceptable agreement both provided for by law and not provided for by law, which does not violate the rights and interests protected by law of parties and third parties.

       Article 6. Equality of parties to mediation

 

      The parties to mediation enjoy equal rights when choosing a mediator, the mediation procedure, their position in it, the ways and means of upholding it, when receiving information, in assessing the acceptability of the terms of an agreement on conflict resolution and bear equal responsibilities.

     Article 7. Independence and impartiality of the mediator. Inadmissibility of mediation intervention

1. When conducting mediation, the mediator is independent of the parties, government bodies, other legal, official and physical persons. The mediator is independent in the choice of means and methods of mediation, the admissibility of which is determined by this Law.
2. The mediator should be impartial, conduct mediation in the interests of both parties and ensure that the parties participate equally in the mediation process. In the presence of circumstances that impede the impartiality of the mediator, he must refuse to conduct mediation.
3. Intervention in the activities of the mediator during mediation by the persons referred to in paragraph 1 of this article is not allowed, except in cases provided for by the laws of the Republic of Kazakhstan.

     Section 8. Confidentiality

1. Mediation participants are not entitled to disclose information that became known to them during mediation, without the written permission of the mediation party that provided this information.
2. The mediator may not be questioned as a witness about the information that became known to him during the mediation, with the exception of cases provided for by the laws of the Republic of Kazakhstan.
3. The disclosure by the mediation participant of information that became known to him during the mediation, without the permission of the mediation party that provided this information, entails liability established by the laws of the Republic of Kazakhstan.

     

     Chapter 2. LEGAL PROVISION OF MEDIATORS AND ORGANIZATIONS PROVIDING MEDIA

     Article 9. Requirements for mediators

 

1. A mediator may be an independent, impartial, not interested in the outcome of the case individual selected by mutual agreement of the parties to mediation, included in the register of mediators and who has consented to the function of mediator.
2. The activity of a mediator can be carried out both on a professional basis (professional mediator), and on an unprofessional basis. 3. The mediator may carry out activities on an unprofessional basis: 1) persons who have reached the age of forty and are on the register of non-professional mediators; 2) judges during the conciliation proceedings in court in accordance with the Civil Procedure Code of the Republic of Kazakhstan. 4. The mediator may carry out activities on a professional basis: 1) persons with higher education who have reached the age of twenty-five, having a document (certificate) confirming that they have completed the training program for mediators, approved in the manner determined by the Government of the Republic of Kazakhstan, and included in the register of professional mediators; 2) retired judges. 5. The activity of a mediator is not an entrepreneurial activity. 6. Persons carrying out the activities of a mediator shall also have the right to carry out any other activity not prohibited by the legislation of the Republic of Kazakhstan. 7. A mediator cannot be a person: 1) authorized to perform state functions and equated with it; 2) recognized by the court as legally incompetent or partially legally incapable; 3) in relation to which criminal prosecution is carried out; 4) having a conviction not canceled or not withdrawn in the manner prescribed by law. 8. By agreement of the parties to mediation, additional requirements for a mediator may be established.

      Article 10. Rights and obligations of a mediator

1. The mediator has the right to: 1) during the mediation, hold meetings with all parties simultaneously and with each of the parties separately and provide them with oral and written recommendations for resolving a dispute (conflict); 2) to inform the public about the implementation of their activities in compliance with the principle of confidentiality. 2. The mediator is obliged: 1) to conduct mediation only with the consent of the parties to mediation; 2) before the mediation begins, explain to the mediation parties its goals, as well as their rights and obligations. 3. A professional mediator is required to comply with the Code of Professional Ethics of Mediators, approved by the association (union) of mediators, as well as submit a monthly report on the work done according to the requirements established by the organization of mediators. 4. The mediator also has other rights and carries other obligations stipulated by the legislation of the Republic of Kazakhstan.

     Article 11. Rights and obligations of the parties to mediation

 

1. Parties to mediation have the right: 1) to voluntarily choose a mediator (mediators); 2) refuse the mediator; 3) to refuse to participate in it at any moment of mediation; 4) participate in mediation in person or through representatives whose powers are based on a power of attorney drawn up in the manner prescribed by law; 5) if the agreement on the settlement of the dispute (conflict) is not fulfilled or improperly executed, apply to the court or the body conducting the criminal process in which the case is being investigated in connection with which mediation was carried out in the manner established by the legislation of the Republic of Kazakhstan. 2. The parties to mediation are obliged to execute the agreement on the settlement of the dispute (conflict) in the manner and within the time periods provided for by this agreement. 3. The parties to mediation also have other rights and bear other obligations stipulated by the legislation of the Republic of Kazakhstan.

    

 Section 12. Challenge of the Plectrum

1. The parties to mediation by mutual agreement have the right to choose another mediator. When conducting mediation in civil or criminal proceedings, the parties are required to notify the court or the criminal prosecution body. 2. In the event of circumstances preventing the mediator from performing his functions in accordance with the principles of mediation, the mediator must immediately withdraw. 3. The mediator has the right to refuse to conduct mediation if, in his opinion, further efforts in the process of conducting it will not lead to the resolution of the dispute (conflict) between the parties, or to terminate mediation with the consent of the parties, fixed in writing.

    

Article 13. Mediator organizations

1. Organizations of mediators are non-profit, non-governmental, self-financing and self-governing organizations created at the initiative of mediators in the legal forms provided for by the Law of the Republic of Kazakhstan "On Non-Profit Organizations". 2. The organization of mediators is created in order to ensure material, organizational, legal and other conditions for mediators to provide mediation services. 3. Mediator organizations have the right to conduct professional training and advanced training of mediators with the issuance of a document (certificate) about the passage of appropriate training in mediation. 4. In order to coordinate their activities, develop and unify the standards (rules) of professional activity of mediators, the procedure (regulation) for mediation, the procedure for payment by the parties of mediation of remuneration to mediators, the organization of mediators is entitled to unite in an association (union). 5. Joining a mediators' organization or an association (union) of mediators is carried out on a voluntary basis. In this case, the collection of entrance fees by the organization of mediators or the association (union) of mediators is not allowed. 6. The association (union) of mediators is entitled to develop and approve a Code of Professional Ethics for Mediators. 

Article 14. Organization of mediators by the registry of professional mediators

1. Each organization of mediators maintains its own register of professional mediators engaged in mediation on the territory of the Republic of Kazakhstan. 2. For inclusion in the register of professional mediators, mediators must provide a copy of an identification card to the organization of mediators (a notarized copy if the original identification card is not submitted for verification), medical certificates from medical organizations providing narcological assistance, and a neuropsychiatric organization issued at the applicant’s place of residence , a certificate of no criminal record, a copy of a higher education diploma and a document (certificate) confirming the passage special training of mediation. 3. The register of professional mediators contains: 1) the surname, name and patronymic (if any) of the mediator; 2) the legal address of the mediator; 3) mediator contact information (mailing address or email address or telephone or fax number); 4) information about the area of ​​mediation in which the mediator specializes; 5) information about the language in which the mediator is able to mediate; 6) information on the availability of a document (certificate) confirming the passage of training in the training program for mediators; 7) information on the suspension of the mediator. 4. Mediators shall be included in the register of professional mediators by the organization of mediators within ten days from the date of receipt of the relevant application, subject to the requirements of paragraph 3 of this article and article 9 of this Law. If the mediator is not included in the register of professional mediators, the organization of mediators must, within ten days from the date of receipt of the relevant application, give a reasoned answer in writing about the reasons for the refusal. 5. Mediators are excluded from the register of professional mediators after a calendar year, unless a statement by the mediator has been submitted by December 25 of the relevant year to extend the period of stay in the registry for the next calendar year. An application to extend the period of stay in the registry may be submitted in electronic form to the electronic address of the mediators' organization. 6. The register of professional mediators should be posted on the Internet resource of the organization of mediators in Kazakh and Russian languages ​​and updated as mediators are included in it. Mediator organizations are entitled to publish the register of professional mediators in periodicals. 7. In case of violation by the mediator of the requirements of this Law, the parties involved in the mediation procedure are entitled to apply to the organization of mediators with a corresponding statement. Upon confirmation of the violation, the organization of mediators suspends the activity of the mediator, indicating this in the register of professional mediators for a period of six months. 8. The decision of the organization of mediators to refuse inclusion, exclusion from the list of professional mediators, to suspend the activities of a mediator may be appealed to a court.

 

Article 15. Mediation by members of the local community 

1. Along with mediators operating on an unprofessional basis, mediation may be carried out by members of the local community who are elected by the meeting (gathering) of the local community and have extensive life experience, authority and an impeccable reputation. 2. The protocol of the meeting (gathering) of the local community on the election of members of the local community as non-professional mediators shall be sent to the authorized body within ten working days for inclusion in the register of non-professional mediators with the application of the documents provided for in paragraph 2 of Article 16, as well as information in accordance with paragraph 3 Section 16 of this Law.

   

Article 16. Maintenance by the akim of a district (city of regional significance), district in a city, city ​​of regional significance, towns, villages, rural districts of the register of non-professional mediators

1. The register of non-professional mediators who mediate on the territory of the Republic of Kazakhstan on an unprofessional basis is maintained by the akim of the district (city of regional significance), district in the city, city of regional significance, village, village, rural district (hereinafter - the authorized body). 2. Mediators performing mediation on an unprofessional basis must contact the authorized body for inclusion in the register of non-professional mediators with copies of identification cards (a notarized copy if the original identification card is not submitted for verification), medical certificates from a medical organization providing drug treatment, and a neuropsychiatric organization issued at the place of residence of the applicant, a certificate of criminal record. 3. The register of non-professional mediators contains: 1) the surname, name and patronymic (if any) of the mediator; 2) the legal address of the mediator; 3) mediator contact information (mailing address or email address or telephone or fax number); 4) information about the area of ​​mediation in which the mediator specializes; 5) information about the language in which the mediator is able to mediate; 6) information on the suspension of the mediator. 4. Mediators are included by the authorized body in the register of non-professional mediators in a notification manner within ten days from the date of receipt of the relevant application, subject to the requirements of paragraph 2 of this article and article 9 of this Law. If the mediator is not included in the register of unprofessional mediators, the authorized body must give a reasoned response in writing about the reasons for the refusal within ten days from the date of receipt of the corresponding application. 5. Mediators are excluded from the register of unprofessional mediators after a calendar year, unless a statement by mediators has been submitted before December 25 of the relevant year to extend the period of stay in the registry for the next calendar year. An application for extending the period of stay in the register may be submitted in electronic form to the electronic address of the authorized body. 6. The register of non-professional mediators should be posted on the Internet resource of the authorized body in Kazakh and Russian or in places accessible to the public and updated as mediators are included in it. The authorized body has the right to publish the register of non-professional mediators in periodicals.

 

   Chapter 3. CONDUCTING MEDIA

     Article 17. Procedure for conducting mediation

1. Mediation is carried out in accordance with the procedure agreed upon by the parties that does not contradict the requirements of this Law. 2. With the consent of the parties, the procedure (regulation) of mediation approved by the organizations of mediators may be applied.

    Article 18. Place and time of mediation

 

1. Parties may, at their discretion, agree on a venue for mediation. 2. With the consent of the parties, the mediator determines the date and time of the mediation.

 

     Article 19. Language for conducting mediation

      The parties may, at their discretion, agree on the language or languages ​​to be used during the mediation process.

 

     Article 20. Terms of mediation 

1. Mediation is carried out by mutual agreement of the parties and upon conclusion of a mediation agreement between them. 2. Mediation in the settlement of disputes arising from civil, labor, family and other legal relations involving individuals and (or) legal entities can be applied both before going to court, and after the start of the trial. 3. Judges and officials of bodies conducting criminal prosecution are not entitled in any form to force the parties to mediate. 4. A proposal to a party to resort to mediation can be made at the request of the other party, by a court or criminal prosecution body. 5. Mediation starts from the day the mediation parties conclude a mediation agreement. 6. If one of the parties sends a written proposal to appeal to mediation and within ten calendar days from the date of its sending or within the other reasonable time specified in the proposal, has not received the consent of the other party to use mediation, such proposal shall be considered rejected. 7. For mediation, the parties, by mutual agreement, choose one or more mediators. 8. The organization of mediators may recommend the candidacy of a mediator (mediators) if the parties have sent a corresponding appeal to the indicated organization. 9. The timing of mediation is determined by the mediation agreement taking into account the requirements of paragraph 1 of Article 23 and paragraph 4 of Article 24 of this Law. If mediation is carried out outside the framework of a civil or criminal process, the mediator and the parties must take all possible measures to ensure that this procedure is terminated within a period of not more than thirty calendar days. In exceptional cases, due to the complexity of the resolved dispute (conflict), and the need to obtain additional information or documents, the period for mediation may be increased by agreement of the parties to the mediation and with the consent of the mediator, but not more than thirty calendar days.

 

     Article 21. Form and content of a mediation agreement

1. In the event of mutual agreement of the parties on the resolution of a dispute (conflict) by mediation, a mediation agreement shall be drawn up in writing. 2. The essential conditions of a mediation agreement are: 1) the date, time and place of drawing up the mediation agreement; 2) the name of the parties to the dispute (conflict), surnames and initials, the positions of their representatives, indicating the authority; 3) subject of dispute (conflict); 4) information about the mediator (mediators), which (which) is selected (selected) by the parties to mediation; 5) the conditions, procedure and amount of expenses associated with the mediation, and in the case of mediation on a professional basis - the payment of remuneration to the mediator (mediators) for mediation; 6) the language of the mediation; 7) the obligation of the parties on the confidentiality of mediation and the consequences of failure to fulfill such an obligation; 8) the grounds and extent of liability of the mediator participating in the settlement of the dispute (conflict) of the parties to mediation, for actions (inaction), resulting in losses (damage) for the parties to mediation; 9) details of the parties (identification data, place of residence, contact numbers); 10) the duration of the mediation; 11) the procedure for mediation. 3. By agreement of the parties, additional requirements for mediators may be established. 4. The parties may agree that the conditions, procedure and amount of payment by the parties of mediation of remuneration to the mediator for the mediation are established in the manner (regulation) approved by the organizations of mediators.

Article 22. Expenses related to mediation

 

1. The costs associated with conducting mediation include: 1) remuneration of the mediator; 2) the costs incurred by the mediator in connection with the mediation, including the cost of travel to the place of the dispute, accommodation and meals. 2. Professional mediators mediate both on a paid and on a free basis. 3. The amount of remuneration of a professional mediator (mediators) shall be determined by agreement of the parties with a mediator (mediators) before the start of mediation. 4. Unless otherwise established by agreement of the parties, the costs associated with the mediation are paid by the parties jointly in equal shares. 5. If the mediator refuses to conduct mediation due to circumstances that impede his impartiality, he is obliged to return the sums paid to him by the parties. 6. Non-professional mediators shall be reimbursed for the expenses incurred by them in connection with the mediation specified in subparagraph 2) of paragraph 1 of this article.

 

Article 23. Features of mediation in the field of civil, labor, family and other legal relations with the participation of individuals and (or) legal entities

1. Mediation in the settlement of disputes arising from civil, labor, family and other legal relations involving individuals and (or) legal entities must be completed no later than thirty calendar days from the date of conclusion of the mediation agreement. If necessary, by mutual decision of the parties, the period of mediation may be extended to thirty calendar days, but not more than sixty calendar days in total. 2. Mediation in the settlement of disputes arising from civil, labor, family and other legal relations involving individuals and (or) legal entities under consideration by the court must be completed no later than thirty calendar days from the date of conclusion of the mediation agreement. If necessary, the period for mediation may be extended by the parties up to thirty calendar days, but not more than sixty calendar days, together with the subsequent sending of a joint written notice to the court. 3. The mediation agreement for the settlement of disputes arising from civil, labor, family and other legal relations with the participation of individuals and (or) legal entities under consideration by the court is the basis for the suspension of the proceedings. 4. Upon termination of mediation conducted within the framework of the civil process, the parties are obligated to immediately send to the court in which the civil case is proceeding: 1) in the case of signing an agreement on the settlement of the dispute, the specified agreement; 2) in other cases - a written notice on the termination of mediation indicating the grounds provided for in Section 26 of this Law.

 

 Article 24. Features of mediation conducted during criminal proceedings

1. The conclusion of a mediation contract by the parties does not suspend the criminal proceedings. 2. The fact of participation in mediation cannot serve as evidence of a guilty plea by a participant in legal proceedings that is a party to mediation. 3. If during mediation one of the parties is a minor, the participation of a teacher or psychologist or legal representatives of the minor is mandatory. 4. Mediation in the course of criminal proceedings should be carried out within the time limits established by the criminal procedure law for pre-trial and trial proceedings. 5. Refusal to sign an agreement on the settlement of the conflict cannot worsen the position of a party to the proceedings, which is a party to mediation. 6. Upon termination of mediation conducted within the framework of the criminal process, the parties are obliged to immediately send to the body conducting the criminal process the criminal case is being processed: 1) in the case of signing an agreement on the settlement of the conflict - this agreement; 2) in other cases - a written notice on the termination of mediation indicating the grounds provided for in Section 26 of this Law.

 

     Article 25. Features of mediation in the field of family relations

 

1. Through mediation, disagreements between spouses regarding the continuation of marriage, the exercise of parental rights, the establishment of the place of residence of children, the contribution of parents to the maintenance of children, as well as any other disagreements arising in family relations, can be resolved. 2. When conducting mediation, the mediator must take into account the legitimate interests of the child. 3. If, during mediation, facts are established that jeopardize or could jeopardize the normal growth and development of the child or cause serious harm to his legitimate interests, the mediator must contact the authority exercising the powers to protect the rights of the child.

 

  Section 26. Termination of Mediation

 

     Mediation is terminated in the following cases: 1) the parties sign an agreement on the settlement of a dispute (conflict) - from the date of signing such an agreement; 2) the establishment by the mediator of circumstances precluding the possibility of resolving a dispute (conflict) by mediation; 3) a written refusal of the parties from mediation in connection with the impossibility of resolving a dispute (conflict) through mediation - from the day the parties signed the written refusal; 4) a written refusal by one of the parties to continue mediation - from the day the mediator sends a written refusal; 5) the expiration of the mediation period - from the day it expires, taking into account the provisions of Articles 23 and 24 of this Law.

 

Article 27. Agreement on the settlement of a dispute (conflict)

 

1. An agreement on the settlement of a dispute (conflict) reached by the parties of mediation during the mediation is concluded in writing and signed by the parties. 2. The agreement must contain information on the parties to the mediation, the subject of the dispute (conflict), the mediator (mediators), as well as the terms of the agreement agreed by the parties, the methods and terms of their execution and the consequences of their failure to perform or improper performance. 3. An agreement on the settlement of a dispute (conflict) is subject to execution by the parties of mediation voluntarily in the manner and terms provided for by this agreement. 4. An agreement on the settlement of a dispute concluded before a civil case in court is a transaction aimed at establishing, amending or terminating the civil rights and obligations of the parties. In the event of failure to fulfill or improper performance of such an agreement, the mediation party that violated the agreement shall be liable in the manner prescribed by the laws of the Republic of Kazakhstan. 5. The agreement on the settlement of the dispute, reached by the parties during the mediation in the course of the civil process, shall immediately be forwarded to the judge who is in charge of the civil case. The dispute settlement agreement is approved by the court in the manner prescribed by the Civil Procedure Code of the Republic of Kazakhstan. In this case, the paid state duty shall be returned to the payer in the manner prescribed by the Code of the Republic of Kazakhstan "On taxes and other obligatory payments to the budget" (Tax Code). 6. The agreement on the settlement of the conflict reached by the parties during the mediation during the criminal process is an agreement on the settlement of the conflict by redressing the harm caused to the victim and reconciling the person who committed the criminal offense with the victim. 7. The specified agreement shall be immediately forwarded to the body conducting the criminal process in the process of which the criminal case is being investigated, and in the cases provided for by the Code of Criminal Procedure of the Republic of Kazakhstan, it is a circumstance that excludes or allows not to prosecute. 8. The agreement on the settlement of the conflict shall enter into force on the day of its signing by the parties. 9. In case of evasion of the execution of the agreement, the interested party is entitled to apply to the court with a statement on the fulfillment of the obligation under the agreement in a simplified written procedure.

         

     Chapter 4. FINAL PROVISIONS

 

     Section 28. Procedure for the entry into force of this Law

 

      This Law shall enter into force six months after its first official publication.