Mediation is a way of resolving disputes when a mediator is invited to the negotiations of the parties in order to work out a mutually beneficial agreement.
For a long time in the Republic of Belarus, the main way to resolve disputes was court proceedings. At present, an understanding has already been formed that conflicts must be reacted quickly.
The procedure and principles for concluding mediation agreements in Belarus are enshrined in the Law “On Mediation”.
The principles of mediation include: voluntariness, equality of participants (no one has advantages), confidentiality (without the consent of the parties, information obtained during mediation cannot be disclosed), impartiality and independence of the mediator.
As for the mediator, it can be an individual who meets the following requirements: having a higher education, undergoing appropriate training of the mediator, or having experience as a conciliator, with a mediator certificate.
Speaking of limitations, we can distinguish the following criteria that do not allow a person to act as a mediator. A civil servant, including one exercising the powers of a judge in court, cannot be a mediator. Also, in this capacity cannot be: an incapable or partially incapacitated person; person with a criminal record; a person whose powers were terminated on the grounds related to misconduct incompatible with his professional activities; a person in respect of whom a decision was made to terminate the mediator’s certificate in connection with a violation of the mediator’s Ethics Rules.
Civil, labor, marriage and family disputes, as well as disputes arising in connection with entrepreneurial and other economic activities, can be resolved through mediation.
The legislation of the Republic of Belarus does not fix a specific list of disputes arising from inheritance cases that can be resolved through mediation.
To begin with, attention should be paid to the grounds for the occurrence of such disputes.
So disputes relate to hereditary:
related to the division of hereditary property;
recognition of the will invalid;
on the allocation of a mandatory share in the inheritance;
between heirs under the law and incapable dependents of the testator;
on removal from the inheritance of unworthy heirs;
on the preemptive right of the heir to certain objects from the composition of the inheritance during its division;
about collecting debts of the testator from his heirs.
However, mediation is possible only when the dispute can be resolved by the parties themselves, as well as if the dispute allows several options for its resolution. Thus, if the law clearly regulates the behavior of the parties to the dispute, then it cannot be resolved by concluding a mediation agreement.
Thus, under the agreement between the heirs, the Civil Code allows the division of hereditary property in common ownership. Thus, a mediation agreement in inheritance cases can be concluded when dividing such property.
You can also apply mediation when establishing the preemptive right of the heir to certain objects of inheritance in its division.
On the initiative of one of the parties, the mediator turns to the other side with a proposal for the settlement of the dispute and an option for such a settlement. Mediation agreement must be recorded in writing. This can be an agreement signed by both parties, messaging through mail, mobile and other communications. An agreement is also considered fixed when one party sends a claim and the other party responds positively to that claim.
The agreement contains information on the subject of the dispute, which should be resolved through mediation. The agreement also includes the obligations of the parties governing the dispute and the time period for their execution, information about the mediator, remuneration to the mediator, additional requirements for the mediator, the consequences of non-fulfillment of the agreement, and other issues as agreed between the parties.
Such an agreement must be contrary to law and violate the rights of others.
When conducting mediation, the mediator is guided by the current legislation of the Republic of Belarus and the rules of ethics of mediators. He interacts with both parties to the dispute, but does not have the right to make his proposals for its settlement, put any of the parties in a preferential position, and violate the rights and obligations of the parties.
Mediation is carried out within six months from the date of conclusion of the agreement.
Currently, the Ministry of Justice, together with the House of Representatives of the Republic of Belarus, has developed a draft amendment to the legislative acts regarding certain issues of mediation.
These changes, among others, secured the right of the parties at any stage of the proceedings to contact a mediator and agree to resolve the dispute. The court can not only suspend the proceedings, but also leave the lawsuit without consideration if the disputing parties turn to the mediator.
Other changes will also be introduced to regulate the mediation process.
The bill was adopted by the House of Representatives in the second reading and has already been approved by the Council of the Republic. 07/01/2020 the above changes will come into force.
Our Law Office has extensive experience in mediation on various disputes in the Republic of Belarus. Our lawyer is a certified mediator who has the right to officially conduct mediation in Belarus, including on disputes about inheritance.
