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 Ms Karine Poghosyan, who expressed her opinion on the proposed changes.
– Miss Poghosyan , 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?
– At the present stage, the draft law “On Making Amendments and Addenda to the Law on Mediation” envisages establishing a requirement to seek mediation before going to court only in certain family cases. Mandatory mediation in labor, banking and other disputes will be possible if the institute of mediation is established in the Republic of Armenia as a result of the changes envisaged at present.
Mandatory reconciliation, of course, has its positive sides. First of all, as a result, a number of disputes will be settled quickly, efficiently and relatively affordable. And in the absence of a mandatory requirement, the disputing parties may not even consider mediation as a mechanism for resolving their dispute. In addition, the imposition of mandatory mediation in individual cases will greatly reduce the workload of the courts, increasing its efficiency.
However, it should be noted that in order to ensure the development of mediation, it will first be necessary to license new mediators. Currently, there is a shortage of specialists in the field. Very few of the mediators licensed in 2015 continue to be involved in mediation, whereas young professionals interested in the field, who are able to contribute to the development of the field through their active involvement, are not licensed. Meanwhile, one of the preconditions for establishing a mandatory mediation requirement is to ensure wide access to mediation services.
– 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. Can this be a tool for unloading the courts?
– The possibility of online mediation in the draft law is of practical importance: The parties to the dispute, being in different places, cities and even countries, can use the services of a mediator without additional costs or loss of time. Of course, there is no advantage without complexity. The difficulty in this case is that on the one hand, in order to provide remote services, mediators must have additional professional training to maintain the principles of mediation (confidentiality, impartiality, equality of parties) and to ensure proper procedural guarantees. On the other hand, both parties to the dispute, in turn, should be able to use the technical means and have the skills to use the electronic application freely.
It is in light of these difficulties that the amended version of the draft has so far removed the provisions on online or telephone mediation between consumers and public service providers. Maybe in the future regulations will be made for mediation through such a procedure.
– 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 strategy, in general, includes all the issues that have been raised and discussed many times. As an example, I can mention the refusal of free mediation for up to four hours, the establishment of higher qualification standards and requirements for mediators, the need to review the management procedure of the Self-Regulatory Organization of Mediators of Armenia, and so on.
It is important for the law to provide for certain legal consequences for refusing to participate in the mediation process without good reason, as well as for not participating in the mediation process or avoiding participation (dishonest behavior of a party). Dishonest use of the mandatory mediation process, dishonest mediation in appointing a dishonest process, etc. should also be considered as dishonest behavior. Such regulations can promote mediation.
– Although the law has not been presented or adopted yet, do you assess the changes in the sphere as sufficient?
– During 2021 and currently work is underway to develop a law on mediation and related laws. Professional discussions, training courses for judges, assistant judges, clerks were organized. A similar course for lawyers is planned to be held soon, with the financial support of the European Union and the Council of Europe the website of the Self-Regulatory Organization of Mediators of Armenia (www.mediators.am) has been created, which is currently in the final stage. These are necessary but not sufficient steps for the development of the sector. It is important that the field of mediation remains in the focus of the state’s attention, because only in that case it will be possible to address the existing problems in the field.
