Mediation As A Modern Means For Settlement Of Conflicts

- When did the definition "mediation" appear for the first time?

Before January 2011, the term "mediation" was not in use in the legislation of the Republic of Kazakhstan. As of the date of this interview, the term "mediation" can be found only in two legislative acts. These are the Law of the Republic of Kazakhstan "On Mediation" and the Law "On Introduction of Amendments and Changes into Certain Legislative Acts of the Republic of Kazakhstan on Mediation Issues". Both laws were signed by the President of the Republic of Kazakhstan on 28 January 2011 and will enter into force as from 5 August 2011. Accordingly, the term "mediation" appeared in the legislation of Kazakhstan for the first time a month ago and is new to it. Mediation as a means for settlement of certain disputes, however, existed in one form or another (depending on a level of development of a society) and was employed by many nations from ancient times, when a dispute was settled by the most reputable and wise mediator (chieftain, flamen, and the like). Elements of mediation existed in the traditional Kazakh society. According to researches the Court of the Biys, as a democratic institute of justice, existed for a period from the 15th to the beginning of the 20th century. One of the main objectives of a biy elected by an aul was reconciliation of conflicting parties. L.A. Slovokhotov, researcher of the beginning of the 20th century, determined the Court of the Biys as "loved by nation".

Unfortunately, during the Soviet period in Kazakhstan and the USSR, in general, mediation as a legal institute did not receive further development despite the fact that the mediation institute existed in many countries, and mediation as the dispute settlement institution continues to be used in countries with reputable legal institutes, such as the USA, France, Germany and many others. It is fair to say that rules of some arbitration institutions applicable in the territory of the Republic of Kazakhstan contained provisions on mediation long before adoption of the Law on Mediation. Possibility to resort to mediation as a dispute settlement procedure in arbitration courts is, however, limited as such procedure can apply only in relation to disputes arising out of civil contracts made between natural persons and legal entities.

In Kazakhstan, the mediation institution (especially in the context of the criminal procedure) was extensively discussed for the first time during International Conference "Alternatives to Criminal Prosecution and Protection of Human Rights in Central Asia" held in Almaty in November 2004. Back in 2004, according to one of the participants of the above conference, mediation was viewed as a "foreign exotic phenomenon" by many of Kazakhstani participants of the conference. It was hard to imagine that already in 2009 introduction of mediation procedures into the national criminal and civil procedure would be initiated. This initiative was advanced at the highest political level in the form of instructions given by the President of the Republic of Kazakhstan at the 5th Congress of Judges on 18 November 2009 and was stipulated in the Presidential Decree "On Measures for Improving Efficiency of the Law-Enforcement Activities and Court System in the Republic of Kazakhstan".

- What is mediation? What is the legal meaning of this term?

According to the Law of the Republic of Kazakhstan "On Mediation", mediation is a dispute (conflict) settlement procedure between parties to a dispute with the assistance of a mediator (mediators) for purposes of reaching a mutually acceptable solution carried out upon voluntary consent of the parties. Objectives of mediation are (1) achievement of an option for dispute (conflict) settlement acceptable by both parties to the mediation; and (2) reduction of a conflict level...