Mediation, more particularly, cross-border and judicial mediation: national report on Kazakhstan

 (Institute of Private Law of the Kaspiiskii Social University, Almaty, Republic of Kazakhstan)

A. As the legal term the notion of mediation has been introduced into the legal system of the Republic of Kazakhstan in 2011 when the Law “On Mediation” was adopted.1 This Law in Article 2 includes the legal definition of mediation (sub-clause 5)). According to this definition, mediation represents “a procedure of resolution of a dispute’s (conflict’s) between [its ] parties with assistance of a mediator (mediators) with the purpose [for the parties ] to achieve a mutually acceptable solution [which procedures ] is implemented by voluntary agreement of the parties.” 

The Law dated January 28, 2011 “On Mediation” (as amended) (the “Mediation Law”) serves as the legal basis for organization of mediation in Kazakhstan, defines principles of mediation and regulates mediation procedures. It also determines a mediator’s status.

B. The Mediation Law in its Article 3 declares the following as purposes of mediation:

achievement of a possible scenario/solution to resolve a dispute (conflict) acceptable for both parties of the mediation procedure; and

decrease of level of the parties’ proneness to conflict.

These purposes are proposed to achieve in each case when mediation takes place to resolve a particular dispute (conflict).

C. The Mediation Law does not specifically identify mediation as an alternative way for dispute resolution (ADR) and, in general, the laws of Kazakhstan still restrictedly operate the term “alternative dispute resolution”. However those documents representing conceptions or programs for further social and legislative development refer to ADR and to mediation as ADR device as well as they call for their further introduction into Kazakhstan’s legal system. Particularly, The Conception of the Legal Policy of the Republic of Kazakhstan adopted by the Decree of the President of the RK dated September 20, 2002 #449 (now expired) proposed that in addition to all efforts in developing Kazakhstani judicial system “alternative methods for settlement of civil-law disputes must be provided for, in particular, [with the aim ] to regulate functioning of arbitration tribunals and to converge to international standards”. Later on, in Chapter 4 of The Conception for Development of Civil Society in the Republic of Kazakhstan for the period of 2006-2011 approved by the Decree of the President of the RK dated July 25, 2006 #154 there is now stated that “in addition to the judicial practice there are alternative ways to settle social, interpersonal conflicts and disputes apply, and there the system to conform (harmonize) interests exists…”. Currently, in The Conception of the Legal Policy of the Republic of Kazakhstan for the Period from 2010 till 2020 adopted by the Decree of the President of the RK dated August 24, 2009 #858 in Section 2.7 there is also stated that “establishing of different ways and means for achieving compromises between parties of private-law conflicts (such as mediation, intermediation and others) in both judicial and out-of-court procedures, including, among others, mandatory discussions of a possibility to use some means and conciliation procedures when preparing a case for a court’s settlement, as well as development of out-of-court forms of protection of civil rights” are defined as a guideline for development of Kazakhstani civil procedural legislation. In addition, in Section 3.2 of this Conception there is also declared that the system of arbitration courts and tribunals shall be further developed. 

D. In their turn, Kazakhstani scholars have considered the notion of ADR and different types of ADR in their publications. Particularly, professors Yu.Basin and M.Suleimenov stipulated that there, basically, the following three types of ADR can be distinguished: (i) negotiations, (ii) mediation and (iii) arbitration.2 In his later article professor M.Suleimenov mentions that there two different positions exist concerning the content of the concept of ADR: some scholars believe that ADR creates an alternative to courts of general jurisdiction, but others consider judicial system and arbitration as two separate phenomena and they treat all other procedures as the alternative (i.e. as ADR) to dispute settlement in both state courts and arbitration. Him personally considers alternative procedures for dispute resolution as “an aggregate of means and methods used by parties to achieve an agreement and when necessary – with involvement of an independent third party whose final judgment with respect to the merits of the dispute case is either advisable or obligatory”.3 And in the same article, in addition to the aforementioned arbitration, mediation and negotiations, he also mentions such types of ADR as med-arb (mediation and arbitration), mini trial, reconciliation of the parties, non-obligatory arbitration or expert assessment opinion. 

E. In line with those conceptual documents approved by the President of Kazakhstan as mentioned above, there two laws were adopted on December 28, 2004. The first one is the Law “On International Arbitration” (initial title was the Law “On International Commercial Arbitration” and it was replaced with the current title in July 2013) regulates those relations arising in the process of functioning of international arbitration on the territory of Kazakhstan, as well as the procedures and conditions for acknowledgement and enforcement of international arbitral awards in Kazakhstan. The second one is the Law “On Arbitration”; it regulates terms and conditions of creation and functioning of arbitration tribunals in the RK, as well as procedures for enforcement of their decisions. Neither these two Laws no the Mediation Law expressly define (in legal terms) arbitration, international arbitration and mediation as types of ADR. 

However, having an access to dossiers of drafts of all these Laws, including the RK Government’s explanatory notes, conclusions and scientific expert opinions which were made to accompany the drafts of the Laws when they were submitted to the RK Parliament, one will find that these acts were initially meant to regulate respective types of alternative dispute resolution of civil-law disputes and (as mediation) some other types of conflicts.4 In addition, in the most of scientific and mass media publications of Kazakhstani scholars, judges and attorneys all three of these procedures are clearly regarded as types of ADR. 

F. In all of available publications in Kazakhstan, mediation is acknowledged as a type of ADR and it is generally understood similar way as it is defined in the Mediation Law. For example, professor M.Suleimenov defines mediation as “settlement of a dispute with assistance of an independent neutral intermediary who promotes to achieve an agreement between the parties”.5 A.Duisenova (the Executive director of the Kazakhstani International Arbitrage) also emphasizes: “mediator is not an arbitrator, he does not determine who is right and who is wrong, he does not make a decision on a dispute. Mediator helps the parties to settle the conflict with benefits to all the parties”.6 A.Sholimova proposes that as a type of ADR “mediation represents a specific form of intermediation which does not propose that a third party makes a judgment on a dispute, but correspondingly a mediator’s main purpose is to assist parties [of the dispute ] to bring the dispute, as soon as possible, to a mutually beneficial and viable solution”.7 Such common understanding of mediation is also expressed in the publication of all reports made by its participants at the international conference organized by the Institute of Legislation of the RK Ministry of Justice held on October 19, 2012 in Astana.8 

G. Above arbitration is considered to represent one of ADR available under the laws of Kazakhstan. By such reference to availability of ADR we mean enforceability of the results of respective type of ADR according to provisions of local legislation and not just a fact that applicable law does not prohibit a procedure. 

Particularly, according to Article 1 of the Law “On Arbitration”, the Law applies with respect to disputes arising out of civil-law relationship with participation of individuals and/or legal entities. Under Article 6 of this Law, arbitration tribunals shall settle such disputes in accordance with legislation of Kazakhstan. Article 32 of this Law regulates the terms under which competent courts provide assistance to arbitration tribunals to secure enforcement of future arbitral awards on separate disputes.9 Article 33 of this Law also sets forth that arbitral awards are acknowledged to be mandatory for the parties of a respective dispute. Finally, Article 46 of the Law “On Arbitration” establishes that when the parties fail to implement an arbitral award such award becomes subject to its enforcement pursuant to execution procedures as provided for by the RK laws on execution of judicial decisions.

In its turn, pursuant to Article 1 of the RK Law “On International Arbitration”, it applies with respect to disputes arising out of civil-law relationship with participation of individuals and legal entities which disputes are resolvable by international arbitration. Article 6(4) specifically provides for that a dispute can be brought to and settled in the international arbitration if at least one party of the dispute is a non-resident of the Republic of Kazakhstan. According to Article 32 of this Law arbitral awards are acknowledged to be mandatory and, when a respective petition is submitted to a competent court, it shall be carried into effect in accordance with the RK civil procedural legislation. Article 25-1 of this Law also regulates the terms under which competent courts provide assistance to arbitral tribunals to secure enforcement of future arbitral awards on separate disputes, as well as in collecting evidences. 

Both of these Laws concerning arbitration establish certain restrictions with respect to those categories of disputes which cannot be settled in arbitration, including international arbitration. However this is a topic of separate consideration as it goes beyond scope of consideration in this report.

Neither the Mediation Law nor both of the Law “On Arbitration” and the Law “On International Arbitration” contain any provisions allowing to reveal any relationships between mediation and arbitration. Professor M.Suleimenov also mentions the absence of a special regulation in existing legislation of Kazakhstan for mediation under the auspice of an institutionalized arbitration.10 For example, these Laws do not regulate whether arbitration should be suspended if the parties of the dispute reach an agreement to solve it in mediation. On the contrary, these Laws on arbitration propose that the parties may reach an amicable agreement and the tribunal will have to formally confirm it. It should be noted that in one of his publications professor Suleimenov M.K. proposed to draft, on the basis of the 2002 - UNCITRAL Model Law on International Commercial Conciliation, a law on conciliation procedures with participation of mediator in civil-law judicial proceedings and in arbitration. However this proposal with respect to regulation of mediation in arbitration has not been implemented.11 

No other ADR devices exist in Kazakhstan under its national law. It appears that no arrangement can be identified as an ADR device if an applicable law fails to provide support in implementation of results of such arrangement proposing judicial support to enforce it. Though, in accordance with general principles declared in the RK Civil Code, participants of civil-law relationship are entitled to establish forms, terms and conditions of their relations and to choose forms and means for settlement of their disputes and conflicts.

H. Under the Mediation Law mediation can be used to settled disputes and conflicts arising out of civil, labor, family and other types of relationships with participation of individuals and/or legal entities. The Mediation Law also allows using mediation to settle disputes and conflicts within criminal legal proceedings on cases concerning crimes of a little and middle heaviness (i.e. those which are not serious or major crimes) unless otherwise is established by laws of Kazakhstan.

However, mediation cannot apply if: (i) a dispute (conflict) infringes or can infringe on interests of third parties not participating in mediation; or (ii) a dispute (conflict) infringes or can infringe on interests of an individual(s) who are legally incapable or restrictedly capable due to a court’s decision(s); and (iii) when a state authority (state body) is a party to a dispute (conflict).

It is also prohibited to apply mediation on criminal cases concerning corruption offences and other crimes against interests of state service and state governance.

All the respective provisions as mentioned above are included in Article 1 of the Mediation Law.

I. According to the Mediation Law, there both out-of-court and court-annexed mediation are accepted in Kazakhstan. Article 20(2) of the Mediation Law specifically states that mediation to settle disputes can be applied both before the parties bring their dispute to court and after a trial proceeding starts. 

J. After the Mediation Law was passed in 2011 a lot of different types of activities concerning creation of organizational, methodological and cadre elements of successful functioning of mediation device have been undertaken in Kazakhstan. 

A number of organizations involved in activities associated with organization of mediations and mediators’ training were established in different cities of Kazakhstan, as well as registers of certified mediators have been formed. For example, as one of the most notable, the Integrated Center of Mediation and Peacemaking “Mediation” (headed by Mrs. S.Romanovskaya) has been set up in Almaty with branches in other regions of Kazakhstan. As it is mentioned in the Center’s website (www.mediation.kz ), during the last two-year period after adoption of the Mediation Law the Center has provided training and certified 183 mediators under three specially designed training programs such as “General Course of Mediation”, “Specialized Course of Mediation” and “Training for Mediation Trainers”. In the register of this Center there 98 certified mediators included.

The Kazakhstani Center of Mediation (www.kazmediation.kz ) in Almaty (director Mrs. I.Vigovskaya) has also created its own register of mediators. This register divides mediators based on where mediators reside and where they can effectively offer their services. Such division includes 9 major cities of Kazakhstan and even Munich (Germany). 

The Kazakhstani International Arbitrage (KIA) chaired by professor M.Sulemenov also offer mediation as alternative way for disputes resolution (www.arbitrage.kz ). Mediation is carried out in accordance with the KIA Rules of Reconciliation (Mediation).

There other mediators’ organizations can be also found in Kazakhstan.

The overall trend is an increase in the number of mediations in different areas of private and public (administrative and criminal) law. In addition, an increase in the number of certified mediators can be also noted, as well as in the number of people interested in taking special training to become certified mediators.

K. There no centralized official statistic and analytical information exist in Kazakhstan concerning number of mediations. Each organization of mediators, however, can offer their own data.

For example, from the website of the aforementioned Integrated Center of Mediation and Peacemaking “Mediation” one can know that “starting from August 5, 2011, when the RK Law “O Mediation” came into effect, professional mediators of the Center prepared (invited to mediation) and completed mediation on 1 dispute considered within a criminal proceedings on criminal case (related to a traffic accident), on 18 civil-law disputes (arisen from family, labor and other legal relations), as well as more than 200 disputes concerning consumer rights protection”.12 

From the official website of the Specialized Inter-District Juvenile Court of Karagandy oblast of Kazakhstan (www.juvencourt.kz ) more detailed information can be found regarding results of activity of the Center of Mediation and Law “Dostasu” located in the city of Karagandy. As it is announced “there are more than 65 of successfully conducted mediations on the credit of the Center “Dostasu”. Those are disputes where we helped to parties in out-of-court procedure to cross the difficult way from conflict to agreement. The amount of only monetary claims settled in such mediations exceeded 10 million tenge. These results of mediation are categorized as follows:

reconciliation of the parties on instituted criminal cases – 2 mediations (3,6%);

family conflicts, including partition of property and determining children’s place of residence – 14 mediations (21,8%);

consumer disputes – 18 (32,7%);

credit relationships (disputes between banks and their clients regarding loans repayment) – 4 mediations (7,2%);

commercial disputes, including those with participation of several legal entities – 8 mediations (14,4%);

refusal from mediation – 1 case;

disputes with providers of public services – 4 mediations (7,2%);

interpersonal conflicts, including those on instituted administrative proceedings (light harm to someone’s health, slander, insult) – 4 mediations (7,2%);

disputes with mass media – 3 mediations (5,5%);

disputes between individuals regarding money claims – 8 mediations.”13 

On the website of the Media Center of the RK Internal Affaires authorities there the following has been announced: “for the half-year period [of 2013 ] 475 cases were closed (completed) with the use of mediation. It is undoubtedly progress! Taking to the consideration that during the last year [2012 ] peacemakers [mediators ] managed to settle and prevent judicial proceedings in only 122 conflicts”.14 

M. The same website of the Media Center includes a kind of forecast stating that “if such increase would take place in future, there is a good perspective that this Law [the Mediation Law ] will finally start work in full”.

Karagandy Center of Mediation and Law “Dostacu” has also noted positive trends. They particularly mention, as positive examples, successful mediation on such disputes as partition of property and business, reconciliation and repayment of debts when periods of limitation of action expired, amicable resolution of about 20 consumer rights related disputes. For the last category of disputes they see it significant that successful dispute resolution became possible due to use of principles and methods of mediation and not with any references to legal norms and sanctions of the consumer law. They also believe that first outcome of application of the Mediation Law shows wide opportunities for spread of mediation in Kazakhstan. “Taking into consideration politically correct mentality of Kazakhstani people we believe that mediation will have important future. However, introduction of mediation into life moved a significant layer of legal and humanitarian problems”.15 Some specific problems are mentioned in this publication, but we can identify them, in addition to other, from another sources. 

For example, representatives of Kazakhstani mediators’ organizations who participated in the conference held on September 26, 2012 in Almaty blamed judges, prosecutors and investigators that they do not explain people the meaning of mediation and possibilities offered by the Mediation Law.16 

Even a year after adoption of the Mediation Law there was an opinion that a little change appeared to happen. The head of the Bostandyk District Court in Almaty A.Sarsembayev identified two reasons to this: (i) there are no authoritative mediators yet and (ii) people do not know how to treat [use, apply ] mediation.17