Particularities of the Kyrgyz Republic’s Law on Mediation – BBC

In Kyrgyzstan, a separate service has appeared to facilitate pre-trial settlement of disputes and disagreements. It is called mediation. The advantage of this service is that civil matters can be resolved on a voluntary and confidential basis considering the interests of both parties. The story of BBC Kyrgyz Service.

Separate rooms or working places for mediators have been arranged in each courthouse.

Rakhat Abdyldaeva, mediator: Mediation can resolve a dispute quickly. Payment is low. In case of withdrawal of the claim the state due shall be refunded. The law on mediation had been passed as one of the elements to combat corruption.

The judge should advise anyone who applies to court to attend an informational meeting with a mediator. We can note that this is a peculiarity of the Kyrgyz Law.

Anar Egemberdieva, the judge: I think mediators will never compete with the courts. They’d rather become partners as they help reduce the number of cases in the courts and speed up decision making process. The Code of Civil Procedure clearly states that parties should be referred to a mediation meeting if both of them agree to be advised on their rights.

When meeting with a mediator it is up to the party to decide whether to cooperate with a mediator or not. However, the number of applications for mediation is very low.

Respondent: I also applied for mediation. I think that primary advantage of mediation is that it helps save time and money.

It has been almost a year since the passage of the Law on Mediation. This work had been well supported by the international organizations.

Dilbara Maksimbekova, Advisor to the IDLO organization: We have studied the international experience. Other countries have extensive mediation experience. Disputes could be resolved with a help of a mediator – an impartial person. As a result, both parties win as a dispute is to be settled taking into consideration the interests of both parties. When our Organization had been considering the mediation issue, we understood that this institution is in line with the mentality of the Kyrgyz people. In old time we used to have the courts of aksakals, biys, kazys, whose extensive life experience helped to settle disputes and disagreements.

The setback of the new service is that the information on the benefits of mediation is not yet available to the public.

Gulsina Kozhoyarova, Head of the Republican Community of Mediators: If there had been support this institute would have quickly risen to its feet.  At present mediation is still in its initial stage of development. It is in the process of formation. It requires a lot of time and financial resources. When I say financial resource, in fact mediators receive training at their own expense, but if the state could support raising of public awareness, I think, this institute would yield many benefits.

According to the law, at present mediators can handle civil, economic cases and less grave crimes.

Kyrgyz Law Students Inspired by Canadian Mediation Practices

Kyrgyz Law Students Inspired by Canadian Mediation Practices

On February 28, 2019, law students at Ala-Too International University received some firsthand knowledge about mediation from Stacey Hsu, a Canadian lawyer interning at IDLO in Kyrgyzstan.

“Mediation, a procedure for settling a dispute with the assistance of an impartial facilitator, is widely practiced in Canada, where over 90 per cent of lawsuits settle before trial,” says Stacey Hsu. “Kyrgyzstan can learn from this country’s experience in practicing mediation.”

Ms. Hsu’s presentation at the Kyrgyz University was about how mediation works and what it is like in Canada aroused great interest from law students. Students were curious about its impact, asked for advice on ways to become a good mediator, on how long it took for mediation to become popular in Canada, and how much mediators are paid.

“The key to becoming an effective mediator is to practice. You must go out and conduct mediations. It is not enough to read about it,” Ms. Hsu responded. “The best experience you will gain is from participating in or conducting mediations.”

Back in Canada, Ms. Hsu participated in hundreds of mediations, where she worked as an attorney. In a few weeks, she will be returning to the class to facilitate a mediation exercise. Ms. Hsu is working in Kyrgyzstan with support from the Canadian Bar Association and Global Affairs Canada.

“We’re glad to see our students get inspired by mediation, which was legally introduced to Kyrgyzstan in 2018. Mediation is less expensive than the court, confidential for both parties, and tailored to needs of parties,” said Aijarkyn Shyngys kyzy, IDLO’s Program Coordinator in Kyrgyzstan.

The International Development Law Organization (IDLO) partners with both EBRD and USAID to facilitate the introduction of mediation in Kyrgyzstan. Its programs helped to establish the Republican Mediators Community, increase mediators’ capacity, and raise public awareness about mediation in the country.

On The Development of Businesses and Mediation

On The Development of Businesses and Mediation

Entrepreneurs welcome the introduction of alternative dispute resolution, in particular, the development of commercial mediation. The most active aspire to get the second profession of a mediator. This was announced on November 30 during a panel discussion on the Danaker platform on the topic: “How will mediation help in business development?”.

During the meeting, business representatives and key experts of Danaker: Dilbara Maksimbekova, adviser on judicial reform of the International Development Law Organization (IDLO) in the Kyrgyz Republic, representative of small hydropower plants, mediator Elvira Borombaeva and director of the International Center for Alternative Dispute Resolution ADR Center International in Romania Konstantin Adi Gavrila discussed issues related to the resolution of commercial disputes.

Mediation for business

Dilbara Maksimbekova informed that at the beginning of the year, they were approached by businessmen with a request to organize a separate training on commercial mediation.

“Businessmen wanted to know what possibilities the meditation opens up, how the procedure itself is carried out, what is its peculiarity? We saw that businessmen are not only interested in the alternative resolution of disputes, moreover, but they themselves also want to mediate. And this is justified: who knows the problems of business better than they do? We decided to support the initiative and invited an international trainer from Minsk Liliya Vlasova to conduct a special course on commercial mediation for business representatives, ”said Dilbara Maksimbekova.

During the five-day Commercial Mediation Course, more than 20 entrepreneurs received a mediator certificate. Gulnara Uskenbaeva, President of the Association of Suppliers, Manufacturers and Distributors, believes that mediation of dispute resolution can become one of the sought-after extrajudicial procedures.

“As a rule, disputes in business are resolved in the process of negotiations or in court. But in court cases are considered for a long time, and waiting for a business is too expensive. The negotiation process may also come to a standstill. And the presence of the neutral side of the mediator can qualitatively affect the negotiation process. I saw a great perspective in mediation and decided to go through special training, ”said Uskenbayeva.

Alternative solution

The law on mediation came into force in early 2018. A feature of mediation is the resolution of disputes with the participation of a neutral person – the mediator. According to experts, an alternative method of resolving disputes will relieve the courts and thereby contribute to improving the quality of courts.

According to official data, the average workload per judge of the first instance is 43.2 cases, the average workload per judge at the second instance is 6.7 cases.

But, the state courts for the recognition of the entrepreneurs themselves are the “last resort”. According to the head of the alliance, Uluk Kydyrbekov, now the cumbersome handling of cases in state courts and, most importantly, the introduction of state fees pushes business away from them

Entrepreneur Kubat Rakhimov asked the order in which he prefers to resolve commercial disputes by building the following order: negotiations, arbitration, and only then the courts. According to Elvira Borombaeva, entrepreneurs somehow have to face conflict situations.

“Mediation has certain tools that will allow us to constructively resolve conflicts, maintain partnerships, and this is very important in business,” says Borombaeva.

How to create demand supply?

To date, the Republican community of mediators has been created and 72 trained mediators have already received a mediator certificate. In addition, there are two mediation centers in the country – the National Center for Mediation and the Center for Mediation and Negotiation. 85 mediators were trained under the project of the European Bank for Reconstruction and Development and IDLO “Development of Commercial Mediation in the Kyrgyz Republic”.

But between the mediators and the business has yet to create a mutually beneficial path of cooperation based on supply and demand. Now, most mediators have little practical experience in resolving commercial disputes, and business has little information about mediation. In addition, there are legal restrictions: mediation cannot resolve disputes if one of the subjects is the state. Meanwhile, entrepreneurs have repeatedly talked about the problems of interaction with government agencies, the contradictions associated with tax and customs issues.

Taking into account the current situation, IDLO within the framework of the EBRD project “Development of Commercial Mediation in the Kyrgyz Republic” is ready to provide support to businesses and take the costs of paying for mediator services.

“Now there is little information in society about the opportunities that are being created in the right field. And we all have to do a lot of work in this direction, ”said Dilbara Maksimbekova.

[The original language of the article is Russian, and this post is translated automatically.]

Seyitjan Apyshev: From Hogging to Mediation

Seyitjan Apyshev: From Hogging to Mediation

Everyone does not want to waste time, money, health, but is forced to do so it if he is mired in litigation on conflicts that failed to resolve peacefully, all sorts of conflicts. Today they happen everywhere. They sometimegivees rise to the irrepressible desire of people for material values. The desire to take, take possession of someone else’s property by deceit, force, cunning and, conversely, inability and unwillingness to listen to the voice of reason, to the rights of the other party, be it a partner, a neighbor, a relative, give rise to all sorts of disputes, and then litigation. Long and exhausting.

Courts are inundated with lawsuits. All certainly want to win the court and get the coveted. Even if it will take years, decades.

The virus of litigation has spread to all segments of the population It is bogged down with business. And this is undoubtedly one of the reasons for hindering the development of the country’s economy, and also the reasons for pushing investors away from the country. No prudent investor would risk putting them into a campaign steeped in litigation. In this situation, it is comforting only that we are not the first and not the last among the countries that have gone through this. Developed countries have passed this for a long time. They learned to control and stop these processes. We just have to do it, drawing on the experience of such countries.

In countries that managed to overcome the economic crisis, first of all, they learned to peacefully settle disputes and conflicts between citizens and commercial organizations. For example, in Singapore, known to the world for its success, advanced commercial organizations created the Association of Mediators and adopted a charter according to which all disputes between them are resolved through mediation.

The development of commercial mediation in Kyrgyzstan seems to be one of the proven effective ways out of stagnation in the country’s economy. And we have all the prerequisites for the development of this effective institution in our country. So, in February of this year, the Law of the Kyrgyz Republic “On Mediation” came into force. The NGO “Republican Community of Mediators” has been created and effectively operates.

The National Mediation Center has prepared hundreds of mediators and continues to prepare them. Recently, the number of mediators who have mastered the secrets, skills and abilities of conducting commercial mediation based on the experience of European countries has been replenished.

A master class on their training took place the other day in Bishkek. A professional mediator, founder and general manager of the Mediation Center in Crajova, the first president of the Union of Romanian Mediation Centers, Konstantin Adi Gavrila, whose consulting services are used by companies, governments, international organizations in solving a wide range of disputes internationally, taught the master class and introduced our mediators to the secrets of a commercial mediation, spoke about the underwater and visible barriers to the resolution of commercial disputes, ways to overcome them. Role-playing games, the analysis of specific cases of resolving commercial disputes from his personal practice, fully helped our mediators to learn well the lessons of commercial mediation. As it turned out, being able to listen and help disputants find a mutually beneficial way to resolve a dispute, when the parties or one of the parties are trying to carefully veil and hide their true commercial or other interests, this is not an easy science, which will have to be thoughtfully and diligently studied. After all, only with perfect mediation tools, certain skills and abilities of the commercial mediation process can help disputants come to common opinion in resolving the subject of the dispute, thereby helping commercial organizations, their owners and employees to save time, money and health.

[This content was automatically translated from the Russian language]

Kyrgyz Entrepreneurs Learned the Basics of Commercial Mediation

Kyrgyz Entrepreneurs Learned the Basics of Commercial Mediation

The five-day basic course on commercial mediation was held in Bishkek from September 17 to 21 under the project of the European Bank for Reconstruction and Development (EBRD) and the International Development Law Organization (IDLO) “Commercial mediation in the Kyrgyz Republic”.

Dilbara Maksimbekova, IDLO Judicial Reform Advisor, says, the specificity of this course is the training of commercial mediation of representatives of the business environment.

“At the beginning of the year, when we launched a series of Basic Courses on Mediation, we were approached by entrepreneurs with a request to organize a separate course on commercial mediation for them. The businessmen wanted to know what possibilities the meditation opens up, how the procedure itself is carried out, what is its effectiveness? Therefore, in May of this year, we invited an experienced coach from Rome, Lubomir Petruleskova, and conducted introductory training for businessmen and bankers. We saw that businessmen are not only interested in the alternative resolution of disputes, moreover, but they themselves also want to mediate. And this is justified: who knows the problems of business better than they do? We decided to support the initiative and invited an international trainer from Minsk Liliya Vlasova to conduct a special course on commercial mediation for business representatives, ”said Dilbara Maksimbekova.

The President of the Association of Suppliers, Manufacturers and Distributors Gulnara Uskenbayeva, who received the certificate of a mediator, believes that the mediation of disputes can be one of the sought-after extrajudicial procedures.

“As a rule, disputes in business are resolved in the process of negotiations or in court. But in court cases are considered for a long time, and waiting for a business is too expensive. The negotiation process may also come to a standstill. And mediation – the presence of a neutral party can qualitatively affect the negotiation process. I saw a great perspective in mediation, ”said Uskenbayeva.

[This content was automatically translated from the Russian language]

Journalists Briefed About New Kyrgyz Law on Mediation

Journalists Briefed About New Kyrgyz Law on Mediation

A seminar celebrating the long-awaited entering into force of new legislation has strengthened journalists’ knowledge of mediation as a form of alternative dispute resolution and its benefits for the people of Kyrgyzstan. Organized by IDLO, the workshop was held on February 20, 2018, at the Internews office in Bishkek.

The media will play a crucial role in spreading information about mediation and helping people and businesses resolve their disputes outside court. During the seminar, representatives of a number of media outlets were briefed on mediation principles and participated in interactive sessions to develop news items based on the information learned.

“Article 40 of the Constitution of the Kyrgyz Republic requires that alternative methods of dispute resolution are offered to the citizens of the country. It’s becoming more important to give them the option to avoid lengthy judicial proceedings,” Aida Kurmanbayeva, who heads up the department for legislation concerning the judiciary, law enforcement and municipal bodies at the Ministry of Justice, told seminar participants.

Dilbara Maksimbekova, IDLO Senior Advisor, highlighted the value of public information. “One of our mediation trainings was broadcast on local television,” she said. “This led to a resident calling us and visiting the training. He wanted to try mediation as a way to resolve a dispute he was involved in.”

Legislation on mediation entered into force in Kyrgyzstan on February 11, 2018 after a lengthy and complicated adoption process that was supported by IDLO and the European Bank for Reconstruction and Development (EBRD). According to international experts, it reflects best practice from other countries in the region. The Ministry of Justice is now tasked with implementing its provisions and reviewing other legislation for compliance with the new law.

Commercial mediation to support economic development

IDLO and EBRD have been working in Kyrgyzstan to support the country’s economic development through commercial mediation, giving businesses a way to avoid expensive and time-consuming litigation in court. In addition to delivering training in two cities, Bishkek and Osh, IDLO and EBRD are also working with the Ministry of Justice to establish a Mediation Coordination Body. The Body will function as a public regulator, tasked with registering and certifying mediators to ensure their competence.

Fred Huston, IDLO’s Country Director in Kyrgyzstan, explained the role of mediators: “It’s important to note that mediators are not lawyers. They need to have certain skills, but the most important thing is that they know what is fair. A mediator is someone who is well respected, who understands the issue, who knows the context, who is able to identify the source of the problem. The mediated solution doesn’t have to follow the letter of the law, but it must respect the spirit of the law.”

“THE MEDIATED SOLUTION DOESN’T HAVE TO FOLLOW THE LETTER OF THE LAW, BUT IT MUST RESPECT THE SPIRIT OF THE LAW.” – FRED HUSTON, IDLO COUNTRY DIRECTOR IN KYRGYZSTAN

Many people in Kyrgyzstan first came across mediation when ethnic conflict erupted in 2010 in Osh, the southern part of the country near the border with Tajikistan. Local mediation efforts played an important part in facilitating dialogue between different groups, and continue to be cited as people’s first experience with the practice.

IDLO and EBRD have partnered in a number of countries in the Central Asia and Eastern Europe region to promote alternative forms of dispute resolution, particularly for commercial matters. In addition to Kyrgyzstan, recent projects on mediation have been implemented in Mongolia, Montenegro and Tajikistan.

 IDLO