РОО ЕСЮМ "PRAKTIKOS"

Mediation Law

Chapter 1. General provisions
Article 1. Scope of mediation.

Paragraph 1 is set out in the wording of the Law of the Republic of Kazakhstan dated December 27, 19, No. 292-VI.
1. The scope of mediation is disputes (conflicts) arising from civil, labor, family and other legal relations involving individuals and (or) legal entities, as well as those considered during criminal proceedings in cases of criminal offenses, crimes of minor and medium gravity, as well as serious crimes in cases provided for by Part Two Article 68 of the Criminal Code of the Republic of Kazakhstan, unless otherwise established by the laws of the Republic of Kazakhstan, and relations arising during the execution of enforcement proceedings.
2. The mediation procedure shall 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 by the court as incompetent or with limited legal capacity.
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 crimes and other crimes against the interests of the public service and public administration.

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

Article 3. Objectives of mediation.
The goals of mediation are:
1) achieving a dispute (conflict) resolution option that suits both sides of mediation;
2) reducing the level of conflict between the parties.

Article 4. Principles of mediation.
Mediation is conducted on the basis of the following principles:
1) voluntary;
2) equality of the parties to mediation;
3) independence and impartiality of the mediator;
4) inadmissibility of interference in the mediation procedure;
5) confidentiality.

Article 5. Voluntary.
1. The condition for participation in the mediation procedure is the mutual voluntary expression of the 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, to increase or decrease the amount of claims or to abandon the dispute (conflict).
4. The parties are free to choose issues 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 legally protected interests of the parties and third parties.

Article 6. Equality of the parties to mediation.
The parties to mediation enjoy equal rights when choosing a mediator, the mediation procedure, their position in it, ways and means of defending it, when receiving information, in assessing the acceptability of the terms of the conflict settlement agreement and bear equal responsibilities.

Article 7. Independence and impartiality of the mediator. Inadmissibility of interference in the mediation procedure.
1. When conducting mediation, the mediator is independent of the parties, state bodies, other legal entities, officials and individuals. 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 must be impartial, conduct mediation in the interests of both parties and ensure equal participation of the parties in the mediation procedure. If there are circumstances that hinder the impartiality of the mediator, he must refuse to conduct mediation.
3. Interference 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.

Article 8. Confidentiality.
1. Mediation participants may not disclose information that became known to them during mediation without the written permission of the mediation party that provided this information.
2. A mediator may not be questioned as a witness about information that became known to him during mediation, except in cases provided for by the laws of the Republic of Kazakhstan.
3. Disclosure by a mediation participant of information that became known to him during 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 status of mediators and organizations providing mediation
Article 9. Requirements for mediators.
1. A mediator may be an independent, impartial individual who is not interested in the outcome of the case, selected by mutual consent of the mediation parties, included in the register of mediators and who has agreed to perform the function of a mediator.
2. The mediator's activity can be carried out both on a professional basis (professional mediator) and on a non-professional basis.
3. To carry out the activities of a mediator on a non-professional basis may:
1) persons who have reached the age of forty and are on the register of non-professional mediators;
2) judges when conducting conciliation procedures in court in accordance with the Civil Procedure Code of the Republic of Kazakhstan.
4. To carry out the activities of a mediator on a professional basis can:
1) persons with higher education who have reached the age of twenty-five, who have a document (certificate) confirming the completion of training under the training program for mediators approved in accordance with the procedure determined by the Government of the Republic of Kazakhstan, and who are in the register of professional mediators;
2) retired judges.
5. The mediator's activity is not an entrepreneurial activity.
6. Persons carrying out the activities of a mediator may also 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 to it;
2) recognized by the court in accordance with the procedure established by law as incompetent or with limited legal capacity;
3) in respect of which criminal prosecution is being carried out;
4) having a criminal record that has not been extinguished or has not been removed in accordance with the procedure established by law.
8. By agreement of the mediation parties, additional requirements may be established for the mediator.

Article 10. Rights and obligations of the mediator.
1. The Mediator has the right:
1) during mediation, hold meetings with both all parties simultaneously and with each of the parties separately and provide them with oral and written recommendations on resolving the dispute (conflict);
2) inform the public about the implementation of its activities in compliance with the principle of confidentiality.
2. The Mediator is obliged to:
1) when conducting mediation, act only with the consent of the mediation parties;
2) before the mediation begins, explain to the mediation parties its objectives, as well as their rights and obligations.
3. A professional mediator must 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 bears other duties provided for by the legislation of the Republic of Kazakhstan.

Article 11. Rights and obligations of the parties to mediation.

1. The parties to mediation have the right:
1) voluntarily choose a mediator (mediators);
2) abandon the mediator;
3) refuse to participate in mediation at any time;
4) participate in mediation personally or through representatives whose powers are based on a power of attorney issued in accordance with the procedure established by law;
5) in case of non-fulfillment or improper fulfillment of the agreement on the settlement of a dispute (conflict), apply to the court or the body conducting the criminal process in which the case in connection with which mediation was carried out is being conducted, in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
2. The parties to the mediation are obliged to fulfill the agreement on the settlement of the dispute (conflict) in the manner and within the time limits provided for by this agreement.
3. The parties to mediation also have other rights and bear other obligations provided for by the legislation of the Republic of Kazakhstan.

Article 12. Withdrawal of the mediator.

1. The parties to mediation have the right to choose another mediator by mutual agreement.
When conducting mediation in the course of civil or criminal proceedings, the parties are obliged to notify the court or the criminal prosecution authority about this.
2. In the event of circumstances preventing the mediator from exercising his functions in accordance with the principles of mediation, the mediator must immediately recuse himself.
3. The mediator has the right to refuse mediation if, in his opinion, further efforts in the process of its conduct 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. Organizations of mediators.

1. Organizations of mediators are non-profit, non-governmental, self-financed and self-governing organizations established on the initiative of mediators in organizational and 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 the material, organizational, legal and other conditions for the provision of mediation services by mediators.
3. Organizations of mediators have the right to conduct professional training and professional development of mediators with the issuance of a document (certificate) on the passage of appropriate training in mediation.
4. In order to coordinate their activities, develop and unify standards (rules) of professional activity of mediators, the procedure (regulations) for conducting mediation, the procedure for payment of remuneration by the parties to mediation to mediators, organizations of mediators have the right to unite in an association (union).
5. Membership in the organization of mediators or the association (union) of mediators is carried out on a voluntary basis. At the same time, 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 has the right to develop and approve the Code of Professional Ethics of Mediators.

Article 14. The organization of mediators maintains a register 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. In order to be included in the register of professional mediators, mediators must submit to the organization of mediators a copy of the identity card (a notarized copy in case of failure to submit the original identity card for verification), medical certificates from medical organizations providing drug treatment and a neuropsychiatric organization issued at the applicant's place of residence, a certificate of no criminal record, copies of a diploma of higher education education and a document (certificate) confirming the passage of special training in mediation.
3. The register of Professional Mediators contains:
1) the surname, first name and patronymic (if any) of the mediator;
2) the legal address of the mediator;
3) contact details of the mediator (postal address or e-mail 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 completion of training under the mediator training program;
7) information about the suspension of the mediator's activity.
4. Mediators are included by the organization of mediators in the register of professional mediators in a notification procedure within ten days from the date of receipt of the relevant application, provided that they comply with the requirements of paragraph 3 of this Article and Article 9 of this Law.
If a mediator is not included in the register of professional mediators, the organization of mediators is obliged to give a reasoned response in writing about the reasons for the refusal within ten days from the date of receipt of the relevant application.
5. Excluded in accordance with the Law of the Republic of Kazakhstan dated December 27, 19, No. 292-VI (see old ed.)
6. The register of professional mediators should be posted on the Internet resource of the organization of mediators in Kazakh and Russian and updated as mediators are included in it. Organizations of mediators have the right to publish a register of professional mediators in periodicals.
7. In case of violation by the mediator of the requirements of this Law, the parties participating in the mediation procedure have the right to apply to the organization of mediators with a corresponding application. Upon confirmation of a violation, the organization of mediators suspends the activities of the mediator with an indication of 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, or suspension of the mediator's activities may be appealed to the court.

Article 15. Conducting mediation by members of the local community.
1. Along with mediators who carry out their activities on a non-professional basis, mediation may be conducted by members of the local community elected by the meeting (meeting) for these purposes, who have extensive life experience, authority and impeccable reputation.
2. The minutes of the meeting (gathering) of the local community on the election of members of the local community as non-professional mediators within ten working days shall be sent to the authorized body for inclusion in the register of non-professional mediators with the attachment of the documents provided for in paragraph 2 of Article 16, as well as information in accordance with paragraph 3 of Article 16 of this Law.

Article 16. Maintenance by the akim of a district (city of regional significance), a district in a city, a city of district significance, a village, a village, a rural district of a register of non-professional mediators.
1. The register of non-professional mediators conducting mediation on the territory of the Republic of Kazakhstan on a non-professional basis is maintained by the akim of the district (city of regional significance), district in the city, city of district significance, settlement, village, rural district (hereinafter - the authorized body).
2. Mediators who mediate on a non-professional basis are obliged to apply to the authorized body for inclusion in the register of non-professional mediators with copies of identity cards attached (a notarized copy in case of failure to submit the original identity card for verification), medical certificates from a medical organization providing drug treatment and a neuropsychiatric organization issued at the applicant's place of residence, certificates of no criminal record.
3. The register of non-professional mediators contains:
1) the surname, first name and patronymic (if any) of the mediator;
2) the legal address of the mediator;
3) contact details of the mediator (postal address or e-mail 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 about the suspension of the mediator's activity.
4. Mediators are included by the authorized body in the register of non-professional mediators in a notification procedure within ten days from the date of receipt of the relevant application, subject to compliance with the requirements of paragraph 2 of this Article and Article 9 of this Law.
If a mediator is not included in the register of non-professional mediators, the authorized body is obliged to give a reasoned response in writing about the reasons for the refusal within ten days from the date of receipt of the relevant application.
5. Excluded in accordance with the Law of the Republic of Kazakhstan dated December 27, 19, No. 292-VI (see old ed.)
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 mediation.
Article 17. Procedure of mediation.
1. Mediation is conducted according to the procedure agreed by the parties, which does not contradict the requirements of this Law.
2. With the consent of the parties, the procedure (regulations) for conducting mediation approved by the organizations of mediators may be applied.

Article 18. Place and time of mediation.
1. The parties may, at their discretion, agree on the place of mediation.
2. With the consent of the parties, the mediator determines the date and time of mediation.

Article 19. Language of mediation.
The parties may, at their discretion, agree on the language or languages to be used during the mediation.

Article 20. Conditions of mediation.
1. Mediation is carried out by mutual consent 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 with the participation of individuals and (or) legal entities may be applied both before going to court and after the start of court proceedings.
3. Judges and officials of bodies carrying out criminal prosecution have no right to force the parties to mediation in any form.
4. An offer to a party to apply for mediation may be made at the request of the other party, by a court or a criminal prosecution body.
5. Mediation begins from the date of conclusion of the mediation agreement by the parties to the mediation.
6. If one of the parties has sent a written proposal to apply for mediation and has not received the consent of the other party to use mediation within ten calendar days from the date of its submission or within another reasonable period specified in the proposal, such an offer is 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 specified organization.
9. The terms of mediation are 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 civil or criminal proceedings, the mediator and the parties must take all possible measures to ensure that the specified procedure is terminated within no more than thirty calendar days. In exceptional cases, due to the complexity of the dispute (conflict) being resolved, with the need to obtain additional information or documents, the mediation period may be extended by agreement of the mediation parties and with the consent of the mediator, but not more than thirty calendar days.

Article 21. Form and content of the mediation agreement.
1. In case of mutual consent of the parties to resolve the dispute (conflict) through mediation, a mediation agreement is drawn up in writing.
2. The essential terms of the mediation agreement are:
1) date, time and place of drawing up the mediation agreement;
2) the name of the parties to the dispute (conflict), surnames and initials, positions of their representatives, indicating the powers;
3) the subject of the dispute (conflict);
4) information about the mediator(s) who (are) selected (selected) mediation parties;
5) conditions, procedure and amount of expenses related to mediation, and in the case of mediation on a professional basis - payment of remuneration to the mediator (mediators) for mediation;
6) the language of mediation;
7) the obligation of the parties to confidentiality of mediation and the consequences of non-fulfillment of such an obligation;
8) the grounds and scope of responsibility of the mediator involved in the settlement of the dispute (conflict) of the mediation parties for actions (inaction) that caused losses (damage) to the mediation parties;
9) details of the parties (identification data, place of residence, contact phone numbers);
10) the period of mediation;
11) the procedure for conducting mediation.
3. Additional requirements for mediators may be established by agreement of the parties.
4. The parties may agree that the terms, procedure and amount of remuneration paid by the mediation parties to the mediator for conducting mediation are established in accordance with the procedure (regulations) approved by the organizations of mediators.

Article 22. Expenses related to mediation.
1. The costs associated with mediation include:
1) remuneration of the mediator;
2) expenses incurred by the mediator in connection with the mediation, including expenses for travel to the place of dispute resolution, accommodation and meals.
2. Professional mediators carry out mediation both on a paid and free basis.
3. The amount of remuneration of a professional mediator (mediators) is determined by agreement of the parties with the mediator (mediators) before the start of mediation.
4. Unless otherwise stipulated by the agreement of the parties, the costs associated with mediation shall be paid by the parties jointly in equal shares.
5. If the mediator refuses to conduct mediation due to circumstances impeding his impartiality, he is obliged to return the sums of money paid to him by the parties.
6. Non-professional mediators shall be reimbursed for the expenses incurred by them in connection with 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 mediation period 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 with the participation of 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 mediation period may be extended by the parties up to thirty calendar days, but not more than sixty calendar days in aggregate, followed by their sending a joint written notice to the court.
3. A 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 suspending proceedings in the case.
4. Upon termination of mediation conducted in the framework of civil proceedings, the parties are obliged to immediately send to the court in which the civil case is being conducted:
1) in case of signing an agreement on dispute settlement, the said agreement;
2) in other cases - a written notice of the termination of mediation with an indication of the grounds provided for in Article 26 of this Law.

Article 24. Features of mediation conducted during criminal proceedings.
1. The conclusion by the parties of a mediation agreement does not suspend the proceedings in a criminal case.
2. The fact of participation in mediation cannot serve as proof of the admission of guilt by a participant in the proceedings who is a party to mediation.
3. If one of the parties is a minor during mediation, the participation of a teacher or psychologist, or legal representatives of a minor is mandatory.
4. Mediation in the course of criminal proceedings must be carried out within the terms of pre-trial and judicial proceedings established by the criminal procedure Law.
5. Refusal to sign an agreement on the settlement of the conflict cannot worsen the situation of a participant in the proceedings who is a party to mediation.
6. Upon termination of mediation conducted within the framework of criminal proceedings, the parties are obliged to immediately send to the body conducting the criminal process in which the criminal case is being conducted:
1) in the case of signing an agreement on conflict settlement, the said agreement;
2) in other cases - a written notice of the termination of mediation with an indication of the grounds provided for in Article 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 may 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 endanger or may endanger the normal growth and development of the child or cause serious damage to his legitimate interests, the mediator is obliged to apply to the body exercising powers to protect the rights of the child.

Article 26. Termination of mediation.
Mediation is terminated in the following cases:
1) signing by the parties of an agreement on the settlement of a dispute (conflict) - from the date of signing of such an agreement;
2) the mediator's establishment of circumstances precluding the possibility of resolving the dispute (conflict) through mediation;
3) written refusal of the parties from mediation due to the impossibility of resolving the dispute (conflict) through mediation - from the date of signing by the parties of the written refusal;
4) a written refusal by one of the parties to continue mediation - from the date of sending a written refusal by the mediator;
5) the expiration of the mediation period - from the date of its expiration, 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 to mediation during mediation is concluded in writing and signed by the parties.
2. The agreement must contain data on the parties to 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 non-fulfillment or improper execution.
3. The agreement on the settlement of a dispute (conflict) is subject to execution by the mediation parties voluntarily in the manner and within the time limits provided for by this agreement.
4. A dispute settlement agreement concluded before a civil case is considered in court is a transaction aimed at establishing, changing or terminating the civil rights and obligations of the parties. In case of non-fulfillment or improper fulfillment of such an agreement, the mediation party that violated the agreement is liable in accordance with the procedure provided for by the laws of the Republic of Kazakhstan.
5. An agreement on the settlement of a dispute reached by the parties during mediation in the course of civil proceedings is immediately sent to the judge in whose proceedings the civil case is. The dispute settlement agreement is approved by the court in accordance with the procedure provided for by the Civil Procedure Code of the Republic of Kazakhstan.
At the same time, the paid state duty is subject to refund to the payer in accordance with the procedure provided for by the Code of the Republic of Kazakhstan "On Taxes and other Mandatory Payments to the Budget" (Tax Code).
6. The agreement on the settlement of the conflict reached by the parties during mediation during the criminal process is an agreement on the settlement of the conflict by making amends for the harm caused to the victim and reconciliation of the person who committed the criminal offense with the victim.
7. The said agreement is immediately sent to the body conducting the criminal process in which the criminal case is being conducted, and in cases provided for by the Criminal Procedure Code of the Republic of Kazakhstan, is a circumstance that excludes or allows not to carry out criminal prosecution.
8. The agreement on the settlement of the conflict enters into force on the day of its signing by the parties.