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Pravo.Ru portal published response of Saint Petersburg Chamber of Lawyers to a query of Mikhail Ilyin, lawyer of S&K Vertical, about right of the lawyer to act as the mediator

18 October 2010

The Board of Saint Petersburg Chamber of Lawyers published explanation on query of M.L. Ilyin, lawyer, about right of the lawyer to act as the mediator on professional basis, press service of Saint Petersburg Chamber of Lawyers reported.

The Board of Saint Petersburg Chamber of Lawyers received an application for explanations pursuant to paragraph 19, Article 31 of the Law On Advocacy and Advocateship in the Russian Federation about the lawyer’s right to act as the mediator on professional (non-professional) basis with a view to adoption of the Federal Law On Alternative Procedure for Settlement of Disputes with the Participation of Intermediaries (Mediation Procedure) of July 30, 2010.

Having considered the application of M.L. Ilyin, lawyer, the Board of Saint Petersburg Chamber of Lawyers resolved to adopt explanation read as follows with regard to query of M.L. Ilyin, lawyer, pursuant to paragraph 19, Article 31 of the Law On Advocacy and Advocateship in the Russian Federation :

In accordance with Article 2 of the Law on mediation, the mediation procedure is a method for settlement of disputes with assistance of the mediator on the grounds of voluntary consent of the parties to find a mutually acceptable solution, and the mediator is an independent individual, independent individuals engaged by the parties as intermediaries in settlement of the dispute to assist in making by the parties of a judgement on the merits.

Article 3 of the Law on mediation specifies that the mediation procedure shall be performed in case of mutual declaration of intent of the parties on the grounds of principles of voluntariness, confidentiality, cooperation and equality of the parties, impartiality and independence of the mediator. According to Article 9 of the Law on mediation, to perform the mediation procedure, the mediator (mediators) shall be selected by the parties by mutual agreement or, if it refers to a professional mediator, it shall be appointed by a self-regulated organization of mediators.

According to paragraph 2, Article 10 of the Law on mediation, work of the mediator shall be paid for by the parties in equal proportion. Requirements to the person acting as the mediator are set in Article 15 of the Law on mediation. It (paragraph 3, Article 15) also specifies that activities of the mediator shall not be regarded as entrepreneurial ones. The mediator shall be entitled to perform any other activities which are not forbidden by law.

In accordance with paragraph 3, Article 9 of the Lawyer’s Code of Professional Ethics of January 31, 2003, the lawyer may not perform another paid activity in form of direct (personal) involvement into process of realization of goods, execution of work or rendering of services.

Thus, activities of the mediator cannot be referred to the category of activities on the grounds of an agreement for onerous rendering of services as the agreement for onerous rendering of services between the mediator and the parties is not concluded; the customer that ordered these services is also absent, and the goal of the mediator is not to render legal services to any of the parties, but to assist the parties that individually develop solution for the dispute (Article 3 of the Law on mediation). Furthermore, sub-paragraph 2, paragraph 6, Article 15 of the Law on the mediation contains an express prohibition for the mediator to render legal, consulting or other assistance to any of the parties.

In these circumstances activities of the lawyer acting as the mediator do not conflict with requirements of paragraph 3, Article 9 of the Lawyer’s Code of Professional Ethics as they are not activities relating to onerous rendering of services.

Paragraph 1, Article 2 of Federal Law No. 63-FZ On Advocacy and Advocateship in the Russian Federation of May 31, 2002, specifies that the lawyer may not enter into employment relationships in the capacity of the employee except for scientific, teaching and other creative activity and hold public offices of the Russian Federation, public offices of constituent entities of the Russian Federation, offices of public services and municipal offices either.

According to Article 15 of the Law on mediation, activities of the mediator may be performed both on professional and non-professional basis. Herewith, essential difference lies in the fact that the mediator acting on the professional basis shall have higher professional education and shall undergo special training in accordance with the curricula approved by the Government of the Russian Federation.

In accordance with Article 1 of Federal Law No. 79-FZ On Public Civil Service of the Russian Federation of July 27, 2004, the public offices of the Russian Federation and the public offices of constituent entities of the Russian Federation are offices established by the Constitution of the Russian Federation, federal laws for direct exercising powers of federal governmental authorities, and offices established by constitutions (statutes), laws of constituent entities of the Russian Federation for direct exercising powers of governmental authorities of constituent entities of the Russian Federation. Article 13 of the mentioned law defines the civil employee as a citizen of the Russian Federation that assumed obligations to be in civil service. The civil employee performs professional official activities in the office of the civil service in accordance with the deed of appointment and the service contract and receives remuneration on account of the federal budget or the budget of a constituent entity of the Russian Federation.

In accordance with paragraph 1, Article 2 of Federal Law No. 25-FZ On Municipal Service in the Russian Federation of March 02, 2007, the municipal service means a professional activity of citizens performed on a permanent basis in positions of the municipal service filled by conclusion of an employment agreement (contract). The hirer of the municipal official shall be the municipality on behalf of which powers of the hirer shall be exercised by a representative of the hirer (employer).

The person acting as the mediator does not conclude employment agreement and does not have the employer; therefore, it cannot be referred to the category of persons performing employment functions under the employment agreement (contract).

In these circumstances the lawyer performing mediation activities does not violate requirements of paragraph 1, Article 2 of Federal Law No. 63-FZ On Advocacy and Advocateship in the Russian Federation of May 31, 2002.

Thus, interpretation of provisions of the Law on advocacyandthe Law on mediation in a coordinated fashion makes it possible to conclude that the lawyer shall be entitled to act as the mediator both on professional and non-professional basis.

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