Mediation
Mediation - a universal technology for alternative dispute resolution of two or more parties with the participation of a third party mediator, which helps to work out a specific agreement on the dispute, while the parties fully control the decision-making process to resolve the dispute and the terms of its resolution.
Currently, mediation is a well-known and widespread method of mediation in conflicts and disputes. This unique tool is aimed at increasing respect for rights, freedoms and the person himself, at forming civilized civil and interpersonal relations, strengthening social harmony, resolving social and other contradictions through constructive dialogue, while preserving business and personal relations between participants.
MEDIATION HISTORY
The use of intermediaries to resolve disputes has been noted since ancient times, historians have noted similar cases in the trade of the Phoenicians and Babylon. In ancient Greece, there was a practice of using intermediaries (proxenetas), Roman law, starting with the Code of Justinian (530-533 AD), recognized mediation. The Romans used various terms to denote the concept of "mediator" - internuncius, medium, intercessor, philanthropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.
In some traditional cultures, the figure of the mediator was treated with special respect and revered along with the priests or tribal leaders.
The date of international recognition of mediation can be considered the end of 1999, when an international conference on mediation was held in Vienna.
Mediation in its modern sense began to develop in the second half of the XX century, primarily in the countries of Anglo-Saxon law - the USA, Australia, Great Britain, after which it began to spread in Europe. The first attempts to use mediation, as a rule, concerned the resolution of disputes in the field of family relations. Subsequently, mediation gained recognition in resolving a wide range of conflicts and disputes, ranging from conflicts in local communities to complex multilateral conflicts in the commercial and public sphere.
Since the 2000s, mediation has become a fact of international law and international relations and is actively used to resolve intercultural, interethnic, ethnic, civilizational, economic, trade and military conflicts. Mediation as a method of resolving international conflicts is legalized in Chapter VI: Peaceful settlement of disputes, in Article 33 of the Charter of the United Nations: "The parties involved in any dispute, the continuation of which could threaten the maintenance of international peace and security, should, first of all, try to resolve the dispute through negotiations, examination, mediation, conciliation, arbitration, judicial proceedings, appeals to regional bodies or agreements or other peaceful means of their choice."
Touching upon the historical and legal aspects of the institution of mediation in relation to the Republic of Kazakhstan and its rich history of formation, it can be noted that elements of mediation took place in the activities of the Biy court.
So, we can draw an analogy between mediation and the court of biys, who settled disputes in the Kazakh steppe for many centuries. Like mediators, bii acted as mediators in disputes that arose, while there was no formal appointment to this position.
In the Kazakh society of the XV-XVIII centuries, the biy court had the main judicial power. Legally, any free community member with sufficient authority, knowledge of customary law and eloquence could perform the functions of a biya. In addition, the Khan had the highest judicial power, who had the right to review the decisions of the Biy court. Sheshen and Biy speakers undoubtedly occupy an important place in the history of our people. The most outstanding of them are 3 biya: Tole bi, Aiteke bi, Kazybek bi. It was quite rightly said about them by A. Nurpeisov, a famous writer: "Three wise men whose names do not leave the lips of grateful descendants, Tole bi, Kazybek bi, Aiteke bi, were not only endowed by God with great oratory. They, just like Cicero in Ancient Rome, used a wide range of public duties, including the courts of the beys, thereby asserting the principles of democracy of the Great Steppe by their deeds. It was the great oratory, first of all, that put them in a number of historically significant persons of the Kazakh ethnic group.
The publicity of the trial and the dependence of the biya's authority on the fairness of the decisions made by him led to the impossibility of abuse by the biys and the desire to pass sentences that maximally satisfy both sides. Thus, the purpose of the court was not so much the search for the truth, as the reconciliation of the parties and the termination of the conflict. The XVIII century is a turning point in the history of the formation of the international law of the Kazakhs.
On January 28, 2011, the law "On Mediation" was adopted in Kazakhstan and put into effect on August 5.
The Law defines mediation as a conciliation procedure, that is, an out-of-court form of dispute resolution (conflict) between the parties arising from criminal, legal and civil relations, implemented by voluntary agreement of the parties with the participation of a mediator. Mediation means the ability of the parties to a potential dispute to resolve the conflict out of court with the help of a specialist (mediator) who, initially taking a neutral position in the dispute, has all the necessary knowledge in the disputed issue.
The official adoption of the Law "On Mediation" was preceded by a lot of preparatory, research work.
On September 20, 2002, the First President of the Republic of Kazakhstan N.A. Nazarbayev issued a Decree "On the Concept of legal Policy of the Republic of Kazakhstan". Noting the need to humanize criminal policy, the Decree determined that this should be reflected in criminal proceedings through "wider introduction of the institute of reconciliation by expanding the list of crimes subject to the possibility of exemption from criminal liability through mediation, compensation for property and moral damage to the victim, as well as damage to health."
This is the first mention of mediation in the regulatory thesaurus of Kazakhstan.
At the same time, amendments and additions to the Civil, Criminal, as well as the Criminal Procedure and Civil Procedure Codes of the Republic of Kazakhstan, the Law "On Marriage (Matrimony) and Family", the Law "On Local Government and Self-Government in the Republic of Kazakhstan" were adopted and entered into force.
On July 3, 2011, the Decree of the Government of the Republic of Kazakhstan approved the Rules for training under the Mediator training program. Thus, a regulatory and legal framework has been formed for the introduction and development of the mediation institute in our country.
For the first time in the history of Kazakhstan, a new universal legal instrument has emerged in its legal space, not a new type of responsibility or a way to ensure an obligation, but a new universal legal instrument.
This unique tool is aimed at increasing respect for human rights, freedoms and the person himself, at forming civilized civil and interpersonal relations, strengthening social harmony, resolving social and other contradictions, conflicts and disputes through constructive dialogue.
The state actively encourages the parties in civil cases to reconcile in the courts precisely by way of mediation, establishing in this case a refund of the state fee paid.
At the same time, the refund of the fee is not provided for in other cases of reconciliation with the direct participation of the court, such as a settlement agreement, arbitration proceedings.
The Republic of Kazakhstan is the only country in the Commonwealth of Independent States (CIS) that has included the mediation procedure in criminal proceedings in cases involving minor and moderate crimes.
Speaking at the V Congress of the Union of Judges of the Republic of Kazakhstan, the First President of the Republic of Kazakhstan N.A. Nazarbayev said that it is necessary to carry out work aimed at reducing the number of disputes subject to judicial review. He noted the importance of introducing alternative dispute resolution methods, including conciliation procedures and mediation.
Areas of mediation application:
• disputes (conflicts) arising from civil, labor, family and other legal relations;
• disputes (conflicts) considered in the course of criminal proceedings in cases of minor and medium gravity, about criminal offenses;
• disputes (conflicts) arising during enforcement proceedings;
• inter- and intra-corporate disputes;
• disputes in the banking and insurance sector;
• conflicts and disagreements in the division of property;
• difficulties of mutual understanding in the educational process;
• disputes related to copyright and intellectual property;
• support of projects, the implementation of which affects the interests of many parties;
• conflicts in the health sector;
• various disputes and disagreements between community members and neighbors;
• housing disputes and conflicts;
• business mediation: when signing contracts, contracts; when making any kind of transactions (investments, public procurement, bank lending, purchase and sale, land, housing, inheritance disputes, donation, bequest, etc.);
• cross-cultural conflicts, and much more.
Goals of mediation:
• achievement of a dispute (conflict) resolution option that suits both sides of mediation;
• reducing the level of conflict between the parties.
Principles of mediation:
• voluntary;
• equality of mediation parties;
• independence and impartiality of the mediator;
• inadmissibility of interference in the mediation procedure;
• confidentiality.