On Mediation

The Law of the Republic of Kazakhstan dated 28 January 2011 No. 401-IV

Unofficial translation

      Note of the Republican Centre of Legal Information!
      The order of enforcement of this Law see Article 28

      This Law regulates social relations in the sphere of organisation of mediation in the Republic of Kazakhstan, defines its principles and procedure as well as the status of a mediator.

Chapter 1. GENERAL PROVISIONS

      Article 1. Scope of application of mediation

      1. The scope of application of mediation shall be disputes (conflicts) arising from civil, labour, family and other relations with participation of individuals and (or) legal entities, as well those considered during criminal proceeding in cases of minor and medium gravity crimes, unless otherwise established by the laws of the Republic of Kazakhstan.
      2. The mediation procedure shall not apply to disputes (conflicts) arising from relations specified in paragraph 1 of this Article when such disputes (conflicts) affect or may affect interests of third parties that do not participate in mediation procedure and of individuals recognised by the court as incapable or partially capable.
      3. The mediation procedure shall not apply to disputes (conflicts) arising from civil, labour, family and other relations with participation of individuals and (or) legal entities, when one of the parties is a state body.
      4. The mediation procedure shall not apply to criminal cases on corruption and other crimes against interests of state service and public administration.
      Footnote. Article 1 as amended by the Constitutional Law of the Republic of Kazakhstan dated 03.07.2013 No. 121-V (shall be enforced upon expiry of ten calendar days after its first official publication).

      Article 2. Basic definitions used in this Law

      The following basic definitions shall be used in this Law:
      1) a dispute (conflict) settlement agreement - a written agreement between the parties reached as the result of mediation;
      2) a mediator - an independent individual engaged by the parties for conducting mediation on professional and non-professional basis in accordance with the requirements of this Law;
      3) an association (union) of mediators - an organisation established in order to coordinate activity of mediators organisations as well as for protection of their rights and legitimate interests;
      4) mediators organisations - non-profit organisations established to band together mediators on a voluntary basis in order to accomplish common purposes on the development of mediation, that are complaint with the legislation of the Republic of Kazakhstan;
      5) mediation - a procedure of settlement of a dispute (conflict) between parties upon assistance of a mediator(s) in order to reach a mutually acceptable decision and that is conducted on the basis of voluntary consent of the parties;
      6) parties to mediation – subjects of relationships specified in paragraph 1 of Article 1 of this Law that participate in mediation procedure;
      7) mediation contract - a written agreement between the parties concluded with a mediator prior to the commencement of mediation in order to settle the dispute (conflict);
      8) participants to mediation - mediator and parties to mediation.

      Article 3. Mediation objectives

      The objectives of mediation are:
      1) to reach an option of dispute (conflict) settlement that satisfies both parties to mediation;
      2) decrease a level of conflict between parties.

      Article 4. The principles of conducting mediation

      Mediation carries out on a basis of principles of:
      1) voluntariness;
      2) equal rights of the parties to mediation;
      3) independence and impartiality of mediator;
      4) inadmissibility of intervention in mediation procedure;
      5) confidentiality.

      Article 5. Voluntariness

      1. A mutual voluntary willingness of the parties expressed in a mediation contract is a condition for participation in mediation procedure.
      2. The parties to mediation shall have the right to abandon mediation at its any stage.
      3. During mediation the parties shall be entitled to manage their substantive and procedural rights at their own discretion, to increase or decrease the amount of claims or withdraw from the dispute (conflict).
      4. The parties shall be free to choose the issues for discussion of options of a mutually acceptable agreement.

      Article 6. Equal rights of the parties to mediation

      The parties to mediation shall enjoy equal rights in choosing a mediator, procedure of mediation, their position in it, the way and means of upholding it, during information acquisition, in assessment of the acceptability of terms of a dispute settlement agreement and shall incur equal duties.

      Article 7. Independence and impartiality of a mediator.

      Inadmissibility of intervention in mediation procedure
      1. During mediation a mediator shall be independent from the parties, state bodies, other legal entities, officials and individuals. A mediator shall be independent in choosing means and methods of mediation, admissibility of which is determined by this Law.
      2. A mediator shall be impartial, conduct mediation in the interest of both parties and ensure to the parties equal participation in mediation procedure. When there are circumstances that impede impartiality of a mediator, he shall refuse to conduct mediation.
      3. The parties specified in paragraph 1 of this Article shall not interfere in the activity of a mediator during mediation, except the cases provided by the laws of the Republic of Kazakhstan.

      Article 8. Confidentiality

      1. The participants to mediation shall not disclose any data that has become known to them during mediation, without a written permission of the party to mediation that provided this information.
      2. A mediator shall not be questioned as a witness regarding data that has become known during mediation, except the cases provided by the laws of the Republic of Kazakhstan
      3. Disclosure by a participant to mediation of the data that has become known during mediation, without the permission of the party to mediation that provided this information, entails liability provided by the laws of the Republic of Kazakhstan

Chapter 2. LEGAL STATUS OF MEDIATORS AND ORGANISATIONS CONDUCTING MEDIATION

      Article 9. Requirements to mediators

      1. A mediator shall be an independent, impartial, not interested in the outcome of a case individual, chosen by a mutual consent of the parties to mediation, listed in the register of mediators and who has agreed to perform the functions of mediator.
      2. Activity of mediator can be conducted both on a professional basis (professional mediator) and non-professional basis.
      3. Persons who have reached the age of forty and listed in the register of non-professional mediators can conduct activity of a mediator on a non-professional basis.
      4. Persons who have higher education, reached the age of twenty-five, listed in the register of professional mediators and who have a document (certificate) confirming the completion of mediators training program that is approved according to the procedure defined by the Government of the Republic of Kazakhstan can conduct activity of a mediator on a professional basis.
      5. Activity of mediator is not an entrepreneurial activity.
      6. Persons conducting mediation activity shall also have the right to carry out any other activity that is not prohibited by the legislation of the Republic of Kazakhstan.
      7. The following persons shall not be a mediator:
      1) authorised to perform state functions and equal to them;
      2) recognised by a court as incapable or partially capable according to the procedure provided by the law;
      3) in respect of whom there is a criminal prosecution;
      4) having outstanding conviction or conviction that is not expunged according to the procedure provided for by the law.
      8. The additional requirements to mediation can be established by the agreement between the parties.

      Article 10. Rights and duties of mediator

      1. Mediator shall have the right:
      1) during mediation to hold meetings with all the parties simultaneously, as well as with each of the parties individually and provide them with oral or written recommendations in relation to settlement of a dispute (conflict);
      2) to inform the public about his activity within the principle of confidentiality.
      2. Mediator shall be obliged:
      1) during mediation to act only with the consent of the parties to mediation;
      2) prior to the commencement of mediation to explain to the parties to mediation the objectives of mediation, as well as their rights and duties.
      3. A professional mediator shall comply with the Code of Professional Ethics of Mediators approved by the association (union) of mediators.
      4. A mediator also has other rights and performs other duties as provided by the legislation of the Republic of Kazakhstan.

      Article 11. Rights and duties of parties to mediation

      1. The parties to mediation shall have the right:
      1) to choose a mediator (mediators) voluntarily;
      2) to decline a mediator;
      3) to withdraw to participate in mediation at any time;
      4) to participate in mediation in person or through representatives whose powers are based on a power of attorney issued in accordance with the procedure provided by the law;
      5) in cases of failure of performance or improper performance of a dispute (conflict) settlement agreement according to the procedure provided for by the legislation of the Republic of Kazakhstan to apply to a court or authority that conducts a criminal proceeding, deals with the case in connection with which mediation was conducted.
      2. The parties to mediation shall perform a dispute (conflict) settlement agreement according to the procedure and within deadlines provided by this agreement.
      3. The parties to mediation shall have other rights and perform other obligations provided by the legislation of the Republic of Kazakhstan.

      Article 12. Challenge to a mediator

      1. The parties to mediation shall have the right by a mutual agreement to choose another mediator.
      When conducting mediation during civil or criminal proceeding the parties shall notify about this a court or criminal prosecution body.
      2. In case of circumstances preventing a mediator to carry out his functions in accordance with the principles of mediation, a mediator shall immediately disqualify himself from mediation.
      3. A mediator shall have the right to refuse to conduct mediation if, in his opinion, the further efforts of conducting it do not settle the dispute (conflict) between the parties or terminate mediation with written consent of the parties.

      Article 13. Organisations of mediators

      1. Organisations of mediators are non-profit, non-governmental, self-financing and self-governing organisations established upon initiative of mediators in legal forms provided by the Law of the Republic of Kazakhstan on Non-Profit Organisations.
      2. Organisations of mediators shall be established in order to ensure material, organisational, legal and other conditions for rendering services by mediators on conducting mediation.
      3. Organisations of mediators shall have the right to arrange professional training and professional skill improvement with the issuance of a document (certificate) on completion of corresponding training on mediation.
      4. Organisations of mediators shall have the right to band together into associations (unions) in order to coordinate own activity, to develop and harmonize the standards (rules) of professional activity of mediators, the procedure (rules) of conducting mediation, the procedure for payment of compensation by the parties to mediation to a mediator.
      5. Joining an organisation of mediators or association (union) of mediators shall be on a voluntary basis. An organisation of mediators or association (union) shall not collect membership fees.
      6. An association (union) of mediators shall have the right to develop and approve the Code of Professional Ethics of Mediators.

      Article 14. Keeping the register of professional mediators by organisation of mediators

      1. Each organisation of mediators shall keep the register of professional mediators conducting mediation in the territory of the Republic of Kazakhstan.
      2. In order to be listed in the register of professional mediators, mediators shall submit to an organisation of mediators a copy of identification document (notarised copy in case of failure to provide original identification document for verification), medical certificates from health care organisations rendering drug dependency treatment and from psych neurological organisations that are issued at the place of residence of an applicant, a certificate of lack of criminal record, a copy of certificate of higher education and a copy of document (certificate) confirming the completion of special training on mediation.
      3. The register of professional mediators shall contain:
      1) family name, first name and patronymic (if any) of a mediator;
      2) legal address of a mediator;
      3) contact details of a mediator (post address or email or phone number or fax number);
      4) information on mediation field in which a mediator specialises;
      5) information on languages in which a mediator is able to conduct mediation;
      6) information on existence of a document (certificate) confirming completion of training on programme of mediator preparation;
      7) information on the suspension of mediator’s activity.
      4. An organisation of mediators shall include mediators in the register of professional mediators in notifying manner within ten days from the date of receipt of the relevant application subject to compliance with the requirements of paragraph 3 of this Article and Article 9 of this Law.
      In case of failure to include a mediator in the register of professional mediators an organisation of mediators shall, within ten days from the date of receipt of the relevant application, give a reasoned written response regarding reasons of refusal.
      5. Mediators shall be excluded from the register of professional mediators at the end of the calendar year if an application request of mediator on extension of listing in the register for the next calendar year was not submitted by 25 December of the respective year. The application request on extension of listing in the register may be submitted electronically to the email address of an organisation of mediators.
      6. The register of professional mediators shall be placed on web site of the organisation of mediators in Kazakh and Russian, and shall be updated according to the listing of new mediators. Organisations of mediators shall have the right to publish the register of professional mediators in periodicals.
      7. In case of violation of the requirements of this Law by a mediator the parties involved in mediation have the right to file a respective application to an organisation of mediators. Upon confirmation of violation an organisation of mediators suspends mediator’s activity for 6 months indicating this in the register of professional mediators.
      8. A decision of an organisation of mediators on refusal to include in and on exclusion from the register of professional mediators, on suspension of mediator’s activity may be appealed in the court.

      Article 15. Conducting mediation by community members

      1. Along with mediators conducting their activity on a non-professional basis, local community members elected for these purposes by an assembly (gathering) of local community and who have extensive life experience, credibility and excellent reputation may conduct mediation.
      2. Minutes of the assembly (gathering) of local community on election of members of local community as a non-professional mediator within ten business days shall be forwarded to the authorised body for inclusion to the register of non-professional mediators enclosing 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. Keeping the register of non-professional mediators by Akim of district (the city of region significance), district of the city, the city of district significance, settlement, village, rural district

      Footnote. Title of Article 16 is in the wording of the Constitutional Law of the Republic of Kazakhstan dated 03.07.2013 No. 121-V (shall be enforced upon expiry of ten calendar days after its first official publication)

      1. Akim of district (the city of region significance), district of the city, the city of district significance, settlement, village, rural district (hereinafter - authorised body) shall keep a register of non-professional mediators conducting mediation on non-professional basis in the territory of the Republic of Kazakhstan.
      2. Mediators conducting mediation on non-professional basis shall apply to the authorised body for listing in the register of non-professional mediators enclosing a copy of identification document (notarised copy in case of failure to provide original identification document for verification), medical certificates from health care organizations rendering drug dependency treatment and from psych neurological organisations that are issued at the place of residence of an applicant, a certificate of lack of criminal record.
      3. The register of non-professional mediators shall contain:
      1) family name, first name and patronymic (if any) of a mediator;
      2) legal address of a mediator;
      3) contact details of a mediator (post address or email or phone number or fax number);
      4) information on mediation field in which a mediator specialises;
      5) information on languages in which a mediator is able to conduct mediation;
      6) information on the suspension of mediator’s activity.
      4. The authorised body includes mediators in the register of non-professional mediators in notifying manner 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.
      In case of failure to include a mediator in the register of non-professional mediators the authorised body shall, within ten days from the date of receipt of the relevant application, give a reasoned written response regarding reasons of refusal.
      5. Mediators shall be excluded from the register of non-professional mediators at the end of the calendar year if an application request of mediator on extension of listing in the register for the next calendar year was not submitted by 25 December of the respective year. The application request on extension of listing in the register may be submitted electronically to the email address of the authorised body.
      6. The register of non-professional mediators shall be placed on web site of authorised body in Kazakh and Russian or in publicly accessible places, and shall be updated according to the listing of new mediators.
      The authorised body shall have the right to publish the register of non-professional mediators in periodicals.
      Footnote. Article 16 as amended by the Constitutional Law of the Republic of Kazakhstan dated 03.07.2013 No.121-V (shall be enforced upon expiry of ten calendar days after its first official publication)

Chapter 3. CONDUCTING MEDIATION

      Article 17. Mediation procedure

      1. Mediation shall be conducted according to the procedure agreed by the parties and compatible with the requirement of this Law.
      2. The procedure (rules) of mediation approved by the organisations of mediators may be applied with the consent of the parties.

      Article 18. Place and time of mediation

      1. The parties at their own discretion may agree about a place of mediation.
      2. A mediator determines the date and time of mediation with the consent of the parties.

      Article 19. The language of mediation

      The parties at their own discretion may agree on language or languages to be used during mediation.

      Article 20. Terms of mediation

      1. Mediation shall be conducted by a mutual consent of the parties and when mediation contract between them is concluded.
      2. Mediation during the settlement of disputes arising from civil, labour, family and other relations with the participation of individuals and (or) legal entities, may be applied both before applying to the court and after the commencement of trial.
      3. Judges and officials that carry out criminal prosecution shall not force parties in any form to mediate.
      4. An offer to the party to apply to mediation may be done by court or criminal prosecution body at the request of the other party.
      5. Mediation shall begin from the date when the parties to mediation enter into a mediation contract.
      6. If one party sends a written offer to apply to mediation and within ten calendar days from the date of sending it or within other specified in the offer reasonable period does not receive the consent of the other party to mediate, such offer shall be deemed as rejected.
      7. In order to mediate the parties by a mutual consent shall choose one or several mediators.
      8. An organisation of mediators may recommend a candidacy for the position of a mediator (mediators) if the parties send a corresponding request to the specified organisation.
      9. The dates of mediation shall be determined by a mediation contract given the requirements of paragraph 1 of Article 23 and paragraph 4 of Article 24 of this Law.
      If mediation is conducted outside of civil or criminal proceedings, a mediator and the parties shall take all feasible measures in order to terminate the specified procedure within the period no more than sixty calendar days. In exceptional cases, due to the difficulty to settle the dispute (conflict), the necessity to obtain additional information or documents, the period of mediation may be extended by the agreement between parties to mediation and with the consent of a mediator, but not more than for thirty calendar days.

      Article 21. Form and content of mediation contract

      1. Upon mutual consent of the parties to settle the dispute (conflict) through mediation a mediation contract shall be drawn, in writing.
      2. The essential terms of a mediation contract are:
      1) date, time and place of a mediation contract;
      2) name of the parties to dispute (conflict), the name and initials, title of their representatives with indication of their authority;
      3) subject matter of the dispute (conflict);
      4) information on a mediator (mediators) who is (are) chosen by the parties of mediation;
      5) terms, procedure and amount of expenses related to mediation, and in the case of conducting mediation on a professional basis - remuneration to mediator (mediators) for conducting mediation;
      6) language of conducting mediation;
      7) obligations of the parties in relation to confidentiality of mediation and the consequences of failure to fulfil such obligation;
      8) basis and extent of liability of a mediator involved in the settlement of the dispute (conflict) of the parties to mediation for actions (omissions) caused damages (losses) to the parties to mediation;
       9) details of the parties (data certifying the identity, place of residence, contact numbers);
      10) duration of mediation;
      11) procedure of mediation.
      3. Additional requirements for mediators may be established by the agreement between the parties.
      4. The parties may agree that the terms, procedure and amount of the payment by the parties to mediation of remuneration to mediator for mediation is to be established by the procedure (rules) of organisations of mediators.

      Article 22. Expenses related to mediation

      1. Expenses related to mediation include:
      1) remuneration of a mediator;
      2) expenses incurred by a mediator in connection with mediation, including expenses for travel to the place of dispute consideration, accommodation and meals.
      2. Professional mediators carry out mediation both on paid basis and free of charge.
      3. The remuneration of professional mediator (mediators) is determined by agreement of the parties with a mediator (mediators) before the commencement of mediation.
      4. The parties shall pay expenses related to mediation in equal shares, unless otherwise agreed by the parties.
      5. If a mediator refuses to conduct mediation due to the circumstances that impede his impartiality, he shall return the amount of money paid to him by the parties.
      6. Non-professional mediators shall be reimbursed expenses incurred by them in connection with mediation and specified in sub-paragraph 2) of paragraph 1 of this Article.

      Article 23. Specific aspects of mediation in civil, labour, family and other relations with the participation of individuals and (or) legal entities

      1. Mediation in the settlement of disputes arising from civil, labour, family and other relations with the participation of individuals and (or) legal entities, shall be completed no later than thirty calendar days from the date of conclusion of a mediation contract. Where appropriate, period of mediation may be extended up to thirty calendar days by mutual decision of the parties, but not more than sixty calendar days in total.
      2. Mediation in the settlement of disputes arising from civil, labour, family and other relations with the participation of individuals and (or) legal entities, and that are under court consideration, shall be completed no later than thirty calendar days from the date of conclusion of a mediation contract. Where appropriate, period of mediation may be extended by the parties up to thirty calendar days, but not more than sixty days in total, followed by the submission of a joint written notice to the court.
      3. A mediation contract on settlement of disputes arising from civil, labour, family and other relations with the participation of individuals and (or) legal entities, that are under court consideration, shall be a ground for suspension of the case proceeding.
      4. Upon termination of mediation conducted under a civil procedure, the parties shall immediately send to the court that deals with the civil case:
      1) in a case of signing a dispute settlement agreement – such agreement;
      2) in other cases - a written notice of termination of mediation specifying the grounds provided for in Article 26 of this Law.
      Footnote. Article 23 as amended by the Law of the Republic of Kazakhstan dated 17.02.2012 No. 565-IV (shall be enforced from 01.07.2012).

      Article 24. Specific aspects of mediation conducted during criminal proceeding

      1. Conclusion of a mediation contract by the parties shall not suspend the criminal proceeding.
      2. Participation in mediation shall not be considered as evidence of confession of guilty by participant in the proceeding that is a party to mediation.
      3. If, during mediation, one of the parties is a minor, participation of a teacher or a psychologist or legal representatives of a minor is mandatory.
      4. Mediation during criminal proceeding shall be conducted within the pre-trial and trial deadlines established by the criminal procedure law.
      5. Refusal to sign a dispute settlement agreement shall not worsen the position of participant in the proceeding that is a party to mediation.
      6. Upon termination of mediation conducted within a criminal proceeding, the parties shall immediately send to the body conducting a criminal proceeding, which deals with the criminal case:
      1) in a case of signing a dispute settlement agreement – such agreement;
      2) in other cases - a written notice of termination of mediation specifying the grounds provided for in Article 26 of this Law.
      Footnote. Article 24 as amended by the Constitutional Law of the Republic of Kazakhstan dated 03.07.2013 No. 121-V (shall be enforced upon expiry of ten calendar days after its first official publication).

      Article 25. Specific aspects of mediation in family relations

      1. Disagreements between the spouses regarding the continuation of marriage, exercising parental rights, defining the place of residence of children, the contribution of parents in child support, as well as any other disagreements arising from family relations may be settled through mediation.
      2. During mediation a mediator shall take into account the legitimate interests of a child.
      3. If during mediation are established facts that endanger or may endanger the normal growth and development of a child or cause severe damage to his legitimate interests, a mediator shall apply to the body exercising protection of the rights of children.

      Article 26. Termination of mediation

      Mediation shall be terminated in the following cases:
      1) signing by the parties a dispute (conflict) settlement agreement– from the date of signing such agreement;
      2) establishing by a mediator circumstances precluding the possibility to settle the dispute (conflict) through mediation;
      3) written waiver by the parties from mediation due to failure to settle the dispute (conflict) through mediation - from the date of signing by the parties the written waiver;
      4) written refusal of one of the parties to continue mediation - from the date of sending to mediators the written refusal letter;
      5) expiration of mediation deadline - from the date of its expiry in accordance with the provisions of Articles 23 and 24 of this Law.

      Article 27. Dispute (conflict) settlement agreement

      1. A dispute (conflict) settlement agreement reached by the parties to mediation during mediation shall be concluded in writing and signed by the parties.
      2. The agreement shall contain information about the parties to mediation, the subject matter of the dispute (conflict), a mediator (mediators), as well as the terms of the agreement reached by the parties, the methods and deadlines of their performance and the consequences of the failure to perform or improper performance.
      3. A dispute (conflict) settlement agreement shall be voluntarily performed by the parties to mediation according to the procedure and within deadlines provided by this agreement.
      4. A dispute (conflict) settlement agreement concluded before a civil trial is deemed to be a deal aiming at the establishment, modification or termination of civil rights and obligations of the parties. In the case of failure to perform or improper performance of this agreement, a mediation party that violated the agreement, shall incur liability according to the procedure provided for by the laws of the Republic of Kazakhstan.
      5. A dispute (conflict) settlement agreement reached by the parties during mediation within a civil trial shall be immediately sent to a judge that deals with the civil case. The court shall approve a dispute settlement agreement according to the procedure provided for by the Civil Procedure Code of the Republic of Kazakhstan.
      A paid state duty shall be refunded to the payer according to the procedure provided for by the Code of the Republic of Kazakhstan On Taxes and Other Obligatory Payments to the Budget (Tax Code).
      6. A dispute (conflict) settlement agreement reached by the parties during mediation within criminal trial is deemed to be an agreement of settlement of conflict through expiation of harm caused to a victim and the conciliation of the offender with the victim.
      7. The specified agreement shall be immediately sent to the body conducting the criminal trial that deals with the criminal case, and in the cases provided by the Criminal Procedure Code of the Republic of Kazakhstan, shall be a circumstance precluding or not allowing the criminal prosecution.
      8. A dispute settlement agreement shall enter into force on the day of its signing.
      Footnote. Article 27 as amended by the Law of the Republic of Kazakhstan dated 17.02.2012 No. 565-IV (shall be enforced from 01.07.2012).

Chapter 4. FINAL PROVISIONS

      Article 28. The order of entry into force of this Law

      This Law shall enter into force upon expiry of six months from the date of its first official publication.

      The President of
      the Republic of Kazakhstan N. Nazarbayev