Please upgrade your browser.

Mediation in Russia

Mediation in Russia

With a staggering 20 million cases clogging up the Russian court system and Judges working flat out to process the backlog, Alternative Dispute Resolution needs to establish a foothold and mediation can  provide that solution.

In this interview with pioneering Russian mediator Professor Tsisana Shamlikashvilii I learn all about the current state of mediation in Russia; how mediation has been institutionalised through their Mediation Law, the cases that are most suited to mediation in Russia and whether mediators are gaining ground on more traditional dispute resolution practices.

Professor Shamlikashvilii has been at the spearheading the development of ADR (Alternative Dispute Resolution) in the Russian Federation for the past 20 years. She was instrumental in establishing and supporting the institutionalisation of mediation in Russia. In the interview she talks about the timing of the mediation law coinciding with the great transition from a Communist regime to a market economy and how mediation has the potential to bring about social change.

The scope of the Mediation law covers civil, commercial, labour and family disputes but will only allow mediators to practice a facilitative model of mediation and in the interview I learn why. We also explore the promotion of mediation as a mainstream dispute resolution process in Russia and the role of the courts in achieving acceptance from the legal community who are seen very much as the gate keepers.

 

See More

Sign up for FREE to access more videos

Sign Up NOW!

Transcript

Full Transcript

Aled: Hi everyone. My name is Aled Davies, founder of MediatorAcademy.com, home of the passionate mediator. If you’re a conflict resolution practitioner and want to develop your thinking, learn brand new skills, or even sharpen old ones, then this is the place for you.

We track down thought leaders and experienced practitioners from right around the world, and for 60 minutes try and get answer to some pretty important questions, so that you can improve your effectiveness, develop your thinking, and sharpen your skills.

All right. The big question for today’s interview is this, what’s the current state of mediation in Russia?

My guest today is a pioneer of Alternative Dispute Resolution and one of the central figures who initiated and supported the institutionalisation of mediation in Russia. In 2005 she founded the Center for Mediation and Law, which, during the following years, became the main force in the efforts to build the necessary conditions for the successful implementation of mediation in the Russian Federation.

She’s an international mediator, lawyer, neurologist, and psychologist, and professor of the Moscow State University of Psychology and Education, an academic and scientific supervisor of the Center for Mediation and Alternative Dispute Resolution (ADR) in legal practice at the Moscow State Academy of Law. Her major research topic is the ways how society can influence the personality forming and development implementation of ADR in business environments.

She’s the author of numerous research articles and several books on mediation, alternative dispute resolution, law, psychology, and neurology. Since the end of the 1990s, she has devoted herself to the field of alternative dispute resolution, mediation in particular, and its social importance.

It’s a real pleasure to welcome Professor Tsisana Shamlikashvili on to Mediator Academy. Tsisana, welcome.

Tsisana: Good afternoon.

Aled: How did I pronounce that? Was that right?

Tsisana: Yes, it’s more or less right.

Aled: More or less right. It’s Tsisana, right?

Tsisana: Tsisana. Yes.

Aled: Tsisana. Okay. I want to get that right from the beginning.

Tsisana: Yes.

Aled: Well, thank you very much for coming on to Mediator Academy. I’m really, really curious to know more about the state of mediation in Russia. Before I explore this, I want to ask you something. I was struck when I read your profile. It says that you’ve devoted yourself to the field of alternative dispute resolution and mediation in particular. I get the impression, again, I’ve read your papers, that you believe it has some real social significance, particularly in Russia.

I’m curious to know a bit more about this. What’s led you to feel this way, to feel so passionate about mediation? Why do you believe it’s socially important? What inspires you to do this work? So I thought I’d start off with a nice gentle, easy question for you.

Tsisana: Thank you for the question. Sometimes it’s even good to look a little bit back and try to understand yourself and your own actions, more than 15 years ago.

Aled: Yes, it is. It is.

Tsisana: To tell you truth, probably at the end of ’90s, beginning of 2000s, when I started mediation work and implementation of mediation, probably I did it quite intuitively. There was some conditions in the society, changes which probably you know. In Russia it was a period of great transition.

It was transition from Soviet, from Communist regime, to market economy, and due to this, we had to change a lot of legislation and we had plenty of new laws. Sometimes not even average people, citizens, but also public servants and people who created this legislation, they didn’t have time even to understand what they adopted, so it was kind of kaleidoscope.

At this moment, we were invited by the administration of President for some kind of programme for legal education for the citizens, or the public. From this I learnt that especially aged people, elderly people, and young people, who are more vulnerable always in the society, they need some tools which can help them to protect their own rights. Not so much rights, their own interests and every-day needs, which can help them to realise their every-day needs.

That’s why I just tried to promote mediation to our State Authorities and this was accepted. At least the idea was embraced, and this was very important. This was a starting point.

Even today, when I look back retrospectively, I think that today I can see how much societies in whole, and Russian society particularly, how much they need tools like mediation. If we look at mediation, it was declared as a modern way of dispute resolution, because we can say that mediation exists in so much [inaudible 00:06:51] exists from one way, but is a modern mediation, it exists since the second part, maybe ’40s, of the 20th century.

It started, sometimes we say that it was the renaissance of mediation, but the main features of modern mediation, as it was declared by professionals, by pioneers especially in common law countries, that it empowers parties, and the parties are the main owners of the dispute and the owners of the outcome. Of course, it wasn’t reached always, even in the United States, evaluative mediation, which doesn’t have such features which was declared, but anyway, we are trying always and we have some ideals which we want to reach. If we are talking about mediation empowering people, empowering parties, then it really can bring social change.

Aled: Okay. You touched on a couple of things there. Interestingly, you say you think you’ve been doing it intuitively for quite some time, and how long us, as a race, have been on this planet, so has the idea that dialogue, interest-based negotiation, conversations, discussions, that’s also been inherently within us. It’s almost like a natural process, wanting to try and collaborate.

Tsisana: Yes, I always . . . I was keen to think like this, that it’s more natural for human beings to be more cooperative than more brutal and aggressive. But also there is something in our nature. If we are following the Darwinist theory, then maybe sometimes aggression was the way to survive. It’s not, probably, completely like this, that it’s so natural.

As I see, the history shows us that to cooperate it’s not so common, usually. In some societies it’s a question of power, and power games are very much used. But in today’s society, modern society, this suggests what we need if we want to stay human and if we want to survive as a civilisation. Probably mediation is social tool and social institution, which should be promoted by even states, and civil society, just to become one of the main tools for social relation.

Aled: Mediation has been institutionalised in Russia. Is that right?

Tsisana: Yes. It took quite long, but since 2010 we have a law which was adopted and it’s in power since beginning of 2011.

Aled: This is the law on mediation?

Tsisana: Yes. It’s a special law on mediation procedure.

Aled: Could you say a little bit more about that? What are the key provisions in that and how it works? Give a bit of context.

Tsisana: Yes. First of all, if it will be interesting for you and for your audience, there’s an English version of the law. The translation could be found on the website of the Center for Mediation and Law, it’s www.mediacia.com, just to have an idea about this.

What was very important for us while we drafted the law, was each society has its own specifics, its own also traditions, cultural specifics. For us it was very important to create the platform for mediation which can help us to give the citizens some special instrument which is completely different from all other customised instruments like courts, of course, and even arbitration. We have domestic arbitration and we have international arbitration, as well.

This mediation law, which we have today, it supports facilitative model of mediation. This was done for purpose, because we had to do our best to have some guarantees, some protection against corruption in mediation. By the law mediator doesn’t give any mediator’s proposal. It can be done, but if parties will ask him. At the same time, if mediator feels that it can damage the outcome and the parties still have some space for further negotiation and dialogue to get to a better agreement, then he can refrain from his own proposal.

Aled: Okay, so you have adopted a facilitative model and the premise, or the principles, that underpin that model are it being a voluntary process, mediator’s impartial and independent, it’s a confidential process. Mediator doesn’t offer any proposals, make suggestions, any of that, but they can, providing the parties mutually consent to that. Is that right?

Tsisana: If they will ask mediators, then a mediator could give them his own view on how this dispute can be resolved, but he never imposes any decision or any options on the parties.

Aled: Okay, but the parties both must make that explicit, and the mediator must make that explicit.

Tsisana: Yes.

Aled: Okay. It was interesting, actually, in the paper you wrote about mediation in Russia, I was really interested to read your definition, where you say that mediation is defined as “a method of dispute resolution that enables settlements to be reached on the basis of consent between the parties”. I like that definition. I think that’s a nice definition.

Tsisana: Yes, and for us it’s very important that at least the agreement between parties will be built up on the consensus. We understand that not always it’s possible, and sometimes we just get compromise, but at least, if we are trying to get and achieve more consensual agreement, then probably we can get in the middle, and we can get a better agreement than it could be if we don’t take such effort.

Aled: Okay. You also said something about the rationale for opting for a facilitative approach, as opposed to an evaluative approach, which is becoming increasingly more popular, particularly in America. Now it’s landed on our shores, in the U.K. One of the reasons were the concerns that you had around corruption and how that might filter in. Is that right?

Tsisana: Yes, of course. This is one of the ways to protect mediation procedure from corruption. But I have to just argue on this, you are saying that evaluative model becomes more and more popular. No, probably it will have now kind of opposite process because in the beginning, in the very beginning, the evaluative mediation was more popular.

Now even very prominent lawyers, and even judges, they start to use facilitative model. This outcome is due to more educated parties. When we have evaluative model, usually lawyers are still playing the main role. They are on the first role, they are talking instead of parties, and parties they keep silent.

For real mediation, if we want to have this real empowerment, and the other one is the outcome is reflecting the needs of the parties, then we have to have the voice of the parties very clear and very explicit.

Aled: Okay. How are you promoting mediation in Russia? What are the ways that you are promoting in, not just the legal community, but also the general public?

Tsisana: Yes. Of course, we started from legal community and this was necessary. Especially Russia has more than 20 million today, the last years, Russia has more than 20 million cases in the courts. Can you imagine? We have 142 million society and we have more than 20 million cases filed in the courts. It’s a terrible figure. From the other side, it means that court is the best place to promote any alternatives to the court.

Aled: Right.

Tsisana: Also, international experience shows that courts are always the main gatekeepers for mediation and other alternative tools, and also lawyers. There is a lot of disputes, discussions about if lawyers they feel mediation is a competing field. Maybe from the surface they feel it’s like something which can compete with them, but the best lawyers and well-educated lawyers, and really strategically-thinking lawyers, they understand that mediation gives them more even power and capacity, and professional power.

First of all, if a lawyer wants to help his client the best way, he has to be able to suggest the best tools. This should be his main focus, probably, in his professional work. Of course, we all know some jokes, anecdotes about lawyers, that their main goal is completely different, but probably most of the lawyers they are professionally very ethical and their main goal is just, the main aim for them, is to help their clients the best way.

I don’t say that mediation is panacea or it helps always, but at the same time, in most of the cases, mediation can help resolve the dispute with the best and strong result. Even if mediation won’t be concluded by the mediation agreement, during the mediation procedure parties can get a lot of development, which will help them even if they will go back to the court.

Aled: Okay. You mentioned two numbers. You’ve talked about 20 million cases in the courts, then you mentioned another figure, 147 million, or something. What was that?

Tsisana: One hundred and forty-two.

Aled: What was that figure?

Tsisana: It’s the population of Russia.

Aled: Oh, right. Okay.

Tsisana: Yes.

Aled: That’s incredible, 20 million. How many mediations take place every year in Russia? Is there data available on that?

Tsisana: Yes. The figure is very, very modest, you know? Especially in comparison with the figures which I gave you before. Probably it’s not more than, maybe, more than 1,000 mediations.

Aled: Right, okay.

Tsisana: Not so many, yet.

Aled: Those 1,000 or so mediations, approximately how many mediators would carry out those mediations? How many mediators do you have registered in Russia?

Tsisana: You know, registered mediation . . . At least we know that, for instance, our centre prepared more than 400 mediators. Also, in national organisation for mediators we have more than 120 mediators. Five organisations are providers.

From Federal Institute of Mediation we know that there is almost 100 of providers and education entities which deal with mediation. This is what we have. At the same time, most of the mediators, they never had mediation. Many of them. Many of them, they started just to extend their knowledge, to improve their skills. Some of them, they use the Center develop their mediative approach. We have a lot of our alumni who studied in the Center for Mediation and Law, especially lawyers, who use mediative approach in their every-day work and it helps them.

Aled: Okay. It’s a similar story we’ve got in the U.K. and elsewhere. There’s a vast swathe of mediators waiting to grab all these cases that come from the courts or come from other places, yet the supply side of the equation isn’t quite achieving that mainstream recognition, yet.

What’s it going to take in Russia for mediation to really take root, become a mainstream approach and start to make a real dent into those 20 million cases that are clogging up your courts?

Tsisana: I just wanted to pick up on what you said before, about the very modest practice [inaudible 00:24:31], but at the same time what we are trying to do and we established [sounds like 00:24:40] mediation clinic by the Center. Due to referring, we always try to help mediators who are affiliated with us of possibilities to practise and this is very important.

To tell when mediation will become more used in Russia is not easy to say. We just have to continue our efforts to do it on very, very systemic basis, and hopefully it will start, because now we have a lot of requests from financial sector.

We have a lot of initiatives in some special fields, like in sports, like in agriculture, for instance. So it means that in different fields, step by step, people, they are persuaded that mediation can be helpful, and therefore are choosing it.

Aled: What would you say are the typical cases that mediation is currently being used for in Russia?

Tsisana: In Russia we are seeing a very, very small number, little number, of the commercial cases. We have quite a lot of family cases from different kind. It’s not only divorce, there are cases with involvement of the child’s interests, there are cases between the relatives and family members, and also there is a lot of cases . . .

Aled: I’ve lost your . . .

Tsisana: . . . it can be between neighbours, for instance, it could be between co-workers, which we can’t call directly like labour cases, but it could be the people who are just in every-day relations and they need to settle some contradictions between themselves. But now, as I said, we have some developments in some particular fields, so it means that commercial mediation in this field will grow. I’m saying about financial, about insurance, it means step by step they will grow . . .

Aled: I’ve lost your connection . . .

Tsisana: . . . for business mediation.

Aled: Sorry, I’ve lost . . . Could you say that again? Could you say from . . . ? You talked about commercial mediation, you talked about insurance, and then I lost the connection.

Tsisana: Yes. As I said, when the people from different fields they start to develop mediation in their own field, it means that commercial mediation will grow in this field, as well. Most of these fields are commercial, they are business-related fields.

Aled: Okay. You touched on divorce there. I’m curious about how many of those 20 million cases are divorce or other related cases.

Tsisana: You know, divorce, for instance in the United States, divorce is kind of industry. It’s very common and it’s a huge turnover over there, even money is involved in divorce from the legal support of view. Even in U.K. is, I know. But in U.K. you also have very good legal aid, but probably the laws changed, and as I heard, it’s worse here now.

But anyway, in Russia divorce . . . Russia is not an exception, we have lots of divorced couples, but at the same time we don’t have such a big, great mass of people who have to split some assets or property while they are in divorce procedure, but it’s growing. So I’m afraid that at a certain moment, divorce will become industry for lawyers in Russia as well. So it can become an industry for mediators, but I hope that mediators can do this mostly and with less harm for all parties, and especially children.

Aled: Yes, indeed. Yes. Okay. I’ve got a question about the way that mediators organise themselves. You talked about different . . . I think you called them “self-regulating associations.” I’m curious, because I know in the U.K. there are many different organisations that are organising their own . . . how shall I say it? Rules and regulations, and accreditations, and so on.

Do you see there being, or becoming, a single, unified organisation in Russia? Do you think that that’s going to be part of the evolution? Do you think it’s a good thing if it does? Are there benefits in maintaining that individual, self-regulating group’s autonomy? What are your thoughts on that?

Tsisana: I think that, first of all, development of the regulation of mediation should be harmonised with mediation itself. Mediation is very flexible. So that’s why when we drafted the law we tried to make it less regulated, especially by State. That’s why we have self-regulation, and by the law, mediators and mediation providers they can create associations. They may, but they are not obliged to do this.

Aled: Okay.

Tsisana: Today we have very different organisations, but we have one problem that it’s a good thing, but for development sometimes it creates some problems, because it’s a huge country and the development of new institutions usually starts in the big cities.

People somewhere on periphery when they hear about something new, of course, they want it and it’s very good. They want to follow this new trend and they want to have all this settled in their regions as well.

But there is no such possibility to teach them, or sometimes they’re not even themselves so much conscious about this, that they have to study first. Sometimes we have such cases when people are coming to the conferences and they are saying, ‘We don’t know how to do it, but we teach others.’ Can you imagine? But it probably happens everywhere sometimes.

With mediation, we have to be very careful. If parties they have bad experience about mediation, and this bad experience usually comes from non-professional mediator, so then it can harm all mediation development. That’s why I think from the beginning we have to try at least to have kind of basic standards.

Some criterias, which have to be accepted and followed by everyone. Still we have to have this variety, because we need competition. We have to compete with each other, first of all, and with such huge country, of course, there are cultural differences as well. We have different confessions, we have different cultures.

We have to be able to build up the way like it’s more natural for the societies, for the groups, but at the same time, if we are developing something different, but we call it mediation, then it’s not good. Do you understand what I mean?

Aled: I understand. Yes, yes. What are your thoughts on the future of mediation in Russia? How do you see it developing?

Tsisana: You know, I’m always a sceptical optimist. I prefer to be more real, you know. It won’t happen, and also around the world, you said also that even today, in countries where it took already several decades and mediation is still under-used, we can’t be so optimistic that, for instance, in two, three years, 10 millions from these 20 million court cases will go for mediation.

At least, if we will be able in next 10 years, help people to get to mediation in 3%, 5% of this, it will be already big result. I think so. But with this we also educate people. We will help them to develop their own responsible position in the society. First of all towards themselves, and the attitude which the adult has to have, at least towards his own problems. When we have something which we can solve ourselves, why should we ask someone else to decide, instead of us, for instance?

Aled: In that sense, then, mediators have a bigger responsibility, not just as facilitators, but also as educators. If two people in a conflict, a dispute, are able to have to an experience whereby they can sit across the table and collaborate, learn how to collaborate where in the past that would have been impossible, then there’s hope for future. If they ever end up in another conflict or another dispute with someone, they can take something of what they’ve learnt, something from that experience, and hopefully apply it, and so on and so on. So we have a responsibility to educate, as well.

Tsisana: Of course we’ll have to have this responsibility, and this responsibility, also, it’s a question of allowing people to get trust. Trust first of all in themself, confidence and trust. Sometimes, when we just pass our [inaudible 00:38:00] to judge, it means that we are . . . Some people, they think that they have to win and this shows their strength.

To win in mediation it’s much more complicated, and it needs much more courage, because this win you get it yourself. You work hard on it, but afterwards the fruit is very sweet, because it’s a fruit which you have grown up yourself. So it’s completely different.

People still have to understand and many of – why the business people they don’t do it, because for them it’s completely, more traditional way. They have their army of lawyers, they go to court, and their lawyers they know that they have to win the battle. But sometimes they win one battle, but they won’t win the war because, they have this court decision, which they will never be able to enforce and it gives just some start to new chain of the court hearings.

This is, from one side, it’s very philosophical, but at the same time, I’m sure that mediation should be understood by the people who think that they’re doing multi-billion business that it’s very pragmatic, and would have very good news on European Advisory Board of CPR.

CPR is one of the oldest United States organisations in conflict resolution. Of course, it was very complicated to persuade Russian companies to sign a CPR Pledge, but just two weeks ago one of the biggest Russian corporations signed this Pledge, so it means that they’re starting to turn to ADR and to mediation.

Aled: Can you say a little bit about the CPR Pledge?

Tsisana: Yes. CPR Pledge, CPR exists since the end of the ’70s. It was one of the first organisations. JAMS was established in 1979, probably, and CPR more or less at the same time. In the early ’80s they had the first Pledge, which was signed by, they call it probably Gold Thousand, or something like this.

The biggest, 1,000 of the biggest corporations in the world, most of them of course American, British, European corporations. They signed this pledge about Alternative Dispute Resolution (ADR) and this pledge was for the corporations and also for law firms. That they will use ADR (Alternative Dispute Resolution) and that they will promote ADR. Today it means that the Pledge started to break ice in Russia, as well. Gives us some hope, as well.

Aled: Okay. Are there any other ADR approaches, Alternative Dispute Resolution approaches, that are more popular in Russia? That have got some traction already?

Tsisana: You mean except of mediation?

Aled: Indeed. Yes.

Tsisana: For centuries we always had arbitration, we call it in Russian [Russian 00:41:58]. It was from early mediaeval centuries, arbitration was used in Russia.

Aled: Right.

Tsisana: Yes. This is one, and sometimes we have some pre-court or out of court kind of procedures, but they’re not real procedures. It’s some kind of exchange of papers, exchange of letters, and then it can be somebody who it’s not real Ombudsman, but someone who takes decision or, kind of adjudication. Yes.

Aled: Okay. Very interesting, very interesting. I’m mindful that we’re running over time, but I just wanted to finish off with one question. I’m starting to ask many people, that I interview, this question. What are the things that you think mediators need to be learning, over and above process and skills? What are the key things that you think should be included in a really rigorous mediation curriculum?

Tsisana: You know, we as human beings, we are studying all our life, and if we are mediators, and some people, especially from the beginning, they used to ask from where you could take such personality, if mediator is more even than God. Because he has so pure, so transparent, so fragile. Mediator’s main tool is his own personality. So main thing, what he has to take care, is his personality and it means that he has to work on it.

First of all, it’s our inner life, probably. We have to be ready to listen to ourselves. We have to feed ourselves, I mean to soul-ly [sounds like 00:44:39] to have more food for thought.

Reading, sometimes knowing about others, even if you are curious about someone who is sitting next to you, maybe for years, but you never thinking to know deeper about this person. Of course, if you are travelling, that’s great. It gives you wider horizons and you can get more knowledge about different cultures and different people.

Everything what can help us, you know, even from small things. Sometimes life is very, very complicated. I just came from Germany. I was in the mountains and I was amazed how many stars was in the sky. Some night it was, and my husband just asked me, ‘You’re so tired, you are so exhausted, and at the same time you just maintain this ability to look at the sky and to notice all these things.’ So this gives you energy.

So for mediator is important to be curious, to stay a little bit child, to be able to be surprised, and to see big things in small things. In very, very usual things to see something very special. Probably this is very important, not only for mediator, but for all people.

Aled: That’s lovely. I like that. Looking at the stars, I like the metaphor. I think looking at the stars, getting energy from that, being curious. I also think how important it is to really know ourselves, really understand both our strengths, our weaknesses, be aware of our blind spots.

I think we all have blind spots. As long as we have some awareness of them, then we can do something about it. Also getting curious and interested about other people, I think that’s important.

Tsisana: Also, you know it’s very important also to allow ourselves to be weak and to make mistakes. But sometimes, some people they think mediators should be ideal, but it’s never possible. Usually what we teach our mediators it’s they always have to say to their parties that they’re the same human beings, like they are and they have their own feelings, their own needs, and they can always also be mistaken.

They can admit it and it’s normal. It makes us stronger. When we allow ourselves to be weak, then we are stronger.

Aled: That’s lovely. Listen, Tsisana, you’ve been incredibly generous with your time already. If people want to find out more about the work that you do in Russia, even reach out to you to say hello, or find out more, where is the best place for them to go to contact you?

Tsisana: It’s the Center for Mediation and Law and you have email of Nikolaj. For the public it’s always better to give this email, yes. You can always contact me. You have my email, as well.

Aled: So if I put the website address underneath the interview, people can go and find out, and then they can contact you through that. Is that right?

Tsisana: Yes, www.mediacia.com and as contact address you can put ir@mediacia.com.

Aled: Brilliant.

Tsisana: Thank you very much.

Aled: You’re welcome.

Tsisana: I hope I didn’t disappoint you.

Aled: No, let me be the one that’s saying a huge thank you. Tsisana, thank you very much for your time and it’s been a really interesting and insightful interview to hear about what’s going on in Russia in mediation. Thank you very much.

About the mediator

Tsisana Shamlikashvili Profile Pic

Tsisana Shamlikashvili is an International expert in Alternative Dispute Resolution, international mediator, lawyer, neurologist (academic degrees of MD, PhD) and psychologist. Professor of the Moscow State University of Psychology and Education, holder of the chair “Mediation in social practices”; academic and scientific supervisor of the Center for Mediation and ADR in legal practice of the Moscow State Academy of Law. Her major research... View Mediator