The Judicial and Legal Reform Strategy 2019-2023 envisages amendments to the Civil Procedure Code and the Law on Mediation.
Iravaban.net talked about the topic with mediator, advocate Mariam Mkrtchyan, who expressed her opinion on the planned changes.
– Ms. Mkrtchyan, the Judicial and Legal Reform Strategy envisages the definition of cases of obligatory mediation on certain legal relations, such as family, labor, banking, etc. What do you think will be the result of that change? Can it be an effective mechanism?
– The draft law “On Making Amendments and Addenda to the Law on Mediation” envisages the introduction of compulsory mediation in family matters (divorce, determination of the child’s place of residence, confiscation of alimony, division of property considered the common property of spouses, exercise of parental rights, cases related to the removal of prohibitions to contact with the child, the establishment of a visitation order, the amendment or termination of the marriage contract). This means that before going to court in these cases, the parties to the dispute must try to resolve their differences through mediation with the assistance of an impartial and neutral person, the mediator.
As very few people in Armenia are aware of what mediation is, are not aware of the benefits of this process, such as its secrecy, quickness, control of the parties over the process, they avoid contacting the mediator. Many people also confuse licensed mediators with financial system mediators, but these are different dispute resolution mechanisms. Unlike a financial system mediator, licensed mediators do not make binding decisions on behalf of the parties, but help the parties to the dispute reach a mutually acceptable solution on their own.
In case the draft is adopted, the parties to the dispute mentioned in the law will be obliged to apply for mediation, as a result of which, I think, many disputes will be resolved at this stage and will not reach the court. As a result, the judiciary will not be burdened with cases that are more likely to be settled. In case of a positive result, a mandatory mediation requirement may be established for other types of cases as well. However, it will become clear as a result of practical application.
– The strategy envisages taking steps to introduce modern tools for mediation, for example, online or telephone mediation to resolve disputes between consumers and public service organizations through them. It is noted that through such a platform, dispute resolution can be done in a short timeframe, with low cost or even free for the consumer, through the means of a public service provider. What problems and risks do you see here? Can this be a tool for unloading the courts?
– Given the restrictions on preventing the spread of coronavirus infection worldwide, including in Armenia, it is welcome to include the possibility of online mediation in the draft law. This can also be an effective way if the parties to the dispute are in different regions or countries.
At the same time it is necessary to take into account that even in the case of online mediation it is very important to observe the principles of mediation and procedural guarantees. In particular, I can emphasize the importance of ensuring the principles of secure data exchange, confidentiality and accessibility. If the mentioned guarantees cannot be provided or any of the parties to the dispute does not have the appropriate technical means, I think the implementation of online mediation should be excluded.
With regard to the use of online or telephone mediation to resolve disputes between consumers and public service organizations, these regulations have been removed from the latest revised version of the draft law. In case of effective mediation in family cases, I suppose it is possible that such provisions will be provided in the law in the future.
– What are the gaps in the activities of the mediator and in this sphere in general, which need to be resolved, but are not included in the strategy?
– The problems in the field of mediation are not the result of less regulation of the field, but of its practical application or its absence and neglect of the field. This is one of the areas that require minimal regulation and intervention, and over-regulation can have the opposite effect. However, in practice there are problems that hinder the development of mediation.
No qualification of mediators has been carried out since 2015. Probably, the Ministry of Justice will organize training and qualification of new mediators this year, as a result of which the ranks of licensed mediators will be replenished. Currently, work is underway to develop new rules for training and qualifying mediators. The main emphasis in them will be on developing practical skills of future mediators and granting qualifications only if they exist, as a result of which we will have more skilled mediators.
In addition, I think that continuous work should be carried out with advocates and judges to raise awareness about mediation, as well as to increase confidence in mediation. One of the preconditions for the establishment of this institute is the support and involvement of the mentioned specialists in directing the cases to mediation.
– Although the law has not been presented or adopted yet, do you assess the changes in the sphere as sufficient?
– This year, a lot of work has been done to improve the legislation on mediation, discussions with the participation of various stakeholders have been organized as well, as a result of which relevant amendments have been made to the draft law. As an expert of the Council of Europe and the German Foundation for International Legal Cooperation (IRZ), I submitted my observations and proposals to the Ministry of Justice in 2021, most of which were accepted. I hope that the changes will not be limited to making additions and changes in the legislation, and the mediation will remain in the center of the state’s continuous attention. Only in such a case it is possible to achieve a positive result and have an established institute of mediation.
