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2011-09-01




Draft RECONCILIATION MEDIATION LAW


Draft

LAW OF MONGOLIA
Date: ………… 2011 Ulaanbaatar

RECONCILIATION MEDIATION LAW


CHAPTER ONE
COMMON BACKGROUND

Article 1. Purpose of Law
1.1. The purpose of this Law is to set up a legal basis of reconciliation and regulation of legal disputes by using non-court method and to determine reconciliation mediation activity rules and rights and obligations of participants of this activity.
Article 2. Reconciliation mediation legislation
2.1. The reconciliation mediation legislation is comprised of Civil Code, Code of Civil Procedure, Family Law, Labor Law, Arbitration Law, Court Law, Court Administration Law, this Law and other legislative acts enacted in conformity therewith.
2.2. If an international treaty, to which Mongolia is a State Party, provides otherwise than this Law, the provisions of the former shall prevail.
Article 3. Scope of Law
3.1. Reconciliation mediation shall be used for resolving the disputes arising out of civil legal relations, including the disputes related to other business and economic activities, as well as the disputes arising out of labor and family relations.
3.2. Reconciliation mediation may be used for resolving the disputes other than those specified in the provision 3.1 of this Law only in case if it is specified otherwise in the laws.
3.3. Reconciliation mediation may be used for investigation and resolution activity even after a civil case is opened at court or a dispute is referred to arbitration.
3.4. Reconciliation mediation shall not be used for resolving collective labor disputes as well as to those disputes that are arising out of the relations specified in the provision 3.1 of this Law in the event if they infringe legal interest of a third party not involved in reconciliation mediation or the public.
3.5. Unless otherwise specified in the laws the regulation of this Law is irrelevant to activity of a court or a judge to reconcile parties of a civil case or to provide support in their reconciliation.
Article 4. Definitions of terms
4.1. The following terms used in this Law shall be interpreted as follows:
4.1.1. “Reconciliation mediation” means a non- court method of regulation of a dispute with a help of a reconciliation mediator for the purpose of reaching a solution in consistency with the interests of both Parties of the dispute on the basis of voluntary mutual agreement;
4.1.2. “Parties” mean a citizen or a legal person or a person without rights of legal person who made a request to get a dispute specified in the provision 3.1 of this Law regulated on reconciliation mediation basis;
4.1.3. “Reconciliation mediator” means a professional or non-professional person selected or accepted by the Parties to mediate regulation of disputes and to provide assistance to the Parties in their making decision concerning the given dispute;
4.1.4. “Reconciliation mediation organization” means an organization the main field of business of which is an activity of providing reconciliation mediation service;
4.1.5. “Reconciliation mediation system (a non-court method)” means a written agreement between the Parties established before any dispute arises or after a dispute arose among the Parties out of certain legal relations for the purpose of resolving such dispute on the reconciliation mediation basis;
4.1.6. “Agreement on implementation of reconciliation mediation” means an agreement established between the Parties and a reconciliation-mediator for regulating a dispute on the reconciliation mediation basis;
4.1.7. “Reconciliation agreement” means a written agreement reached between the Parties as a result of conducted reconciliation mediation activity with respect to any dispute or certain controversial issues;

CHAPTER TWO
RECONCILIATION MEDIATION ACTIVITY

Article 5. Purpose and basic principle of reconciliation mediation activity
5.1. The purpose of reconciliation mediation activity is to find a solution consistent to the interests of the Parties participating in reconciliation mediation activity and to regulate a conflict of relations or a dispute between the Parties amicably.
5.2. In case if the Parties mutually agree and express their intentions, a reconciliation mediation activity is carried out on the basis of the principles of voluntarism, equality of the Parties, mediator’s independence and confidentiality.
Article 6. Authority resolving dispute on reconciliation mediation basis
6.1. In order to get their dispute on the reconciliation mediation basis, the Parties shall make their request to the reconciliation mediation section under a court of first instance according to the jurisdiction specified in the Articles 14, 15 and 16 of the Code of Civil Procedure or to an reconciliation mediation organization specified in the provision 8 of this Law.
6.2. A court is obliged to furnish the Parties with information about the reconciliation mediation fully, to provide them with possibility of reconciliation at every stage of investigation and resolution activity before a civil case is initiated or thereafter and to remind them of the possibility of obtaining reconciliation mediation assistance.
6.3. In case if a reconciliation mediation activity has not been conducted with respect to a dispute arising out of family legal relations, a court shall not initiate a civil case unless it is impossible to organize a reconciliation mediation activity.
6.4. In case if the Parties agreed to resolve any dispute on the basis of reconciliation mediation in their agreement, a rule for resolving any dispute by using non-court method shall be deemed established.
6.5. In case if a claim is made to a court by violating the procedure specified in provisions 6.3 and 6.4 of this Law, the court shall refuse to receive the claim according to the provision 35.1.3 of the Code of Civil Procedure.
6.6. In case if a reconciliation mediation is failed, the Parties or in case if any of the Parties fails to fulfill its obligation under a reconciliation agreement, the other Party shall be entitled to approach to a court. These circumstances shall be considered as a ground for restoring period of limitation or considering such period interrupted by the court as specified in the provisions 79 and 80 of the Civil Code.
Article 7. Reconciliation mediation section under court
7.1. A reconciliation mediation section shall operate at a court of first instance.
7.2. General Council of Courts and office of a court of first instance shall be responsible for organization of activity and human resources management of the section specified in the provision 7.1 of this Law and its budget shall be allocated from the budget of the court.
7.3. A professional reconciliation mediator, who has higher education, a certificated of reconciliation mediator training course completion and registered in the name list of reconciliation mediators conducting reconciliation mediation activity at the court, shall work at the section specified in the provision 7.1 of this Law.
7.4. A professional reconciliation mediator shall work according to this Law, the code of ethics adopted by the Professional Council and other regulations.
Article 8. Reconciliation mediation centers under governmental and non-governmental organizations
8.1. The governmental or non-governmental organizations and professional associations may operate reconciliation mediation centers for resolving disputes arising out of legal relations of the given sector according to their respective operational fields.
8.2. A professional reconciliation mediator, who has higher education, a certificated of reconciliation mediator training course completion and registered in the name list of reconciliation mediators conducting reconciliation mediation activity at the court, shall work at the center specified in the provision 8.1 of this Law.
8.3. A professional reconciliation mediator shall work according to this Law, the code of ethics adopted by the Professional Council and other regulations.
Article 9. Non-professional reconciliation mediator
9.1. Any person with legal eligibility and without criminal conviction shall be entitled to conduct reconciliation mediation activity and the activity of non-professional reconciliation mediators shall not be regulated by this Law.
Article 10. Professional Council
10.1. Professional reconciliation mediators may establish the Professional Council under General Council of Courts for the purpose of resolving organizational and legal issues of reconciliation mediation activity.
10.2. The Professional Council shall be established with a team comprised of 15 people such as reconciliation mediators, judges, staff of General Council of Courts and researchers.
Article 11. Competence of Professional Council
11.1. The Professional Council shall exercise the following competence:
11.1.1 to develop, adopt and control implementation of a code of reconciliation mediation, rules of expenses, remunerations and bonuses of reconciliation mediator, a code of ethics of reconciliation mediators and their workplace standards;
11.1.2 to develop training program for preparing and retraining of reconciliation mediators and to organize training;
11.1.3 to select reconciliation mediators and to issue license certificates to them;
11.1.4 to register reconciliation mediators and to organize the work of announcing their name list to the public;
11.1.5 to suspend, deprive reconciliation mediators’ licenses, to cancel license certificates and to eliminate from the name list; and
11.1.6 to establish procedures of the Professional Council meeting.
11.2. The Professional Council shall offer relevant organizations the name list of reconciliation mediators eligible to work at reconciliation mediation centers under the governmental and non-governmental organizations, and professional associations and at the sections under courts.
11.3. An organization specified in the provision 8 of this Law and the Supreme court shall select and register reconciliation mediators out of the name list of reconciliation mediators offered by the Professional Council and provide them with workplaces and working conditions according to the relevant regulations.

CHAPTER THREE
PARTICIPANT OF RECONCILIATION MEDIATION

Article 12. Participant of reconciliation mediation
12.1. Participants of reconciliation mediation activity are the disputed Parties and a reconciliation mediator.
12.2. Two or more parties and one or more mediators may participate in reconciliation mediation activity.
12.3. The Parties may participate in reconciliation mediation activity personally or through their representative.
12.4. Unless otherwise specified in the law, the Parties may get assistance of advocates, translators, interpreters and other persons in the process of reconciliation mediation based on mutual agreement.
12.5. A third party may participate in reconciliation mediation activity according to the grounds and rules specified in this Law.
Article 13. Rights and obligations of the Parties participating in reconciliation mediation activity
13.1. The Parties participating in reconciliation mediation activity shall have the following rights:
13.1.1. to express their own intentions concerning regulation of their disputes on reconciliation mediation basis freely without any pressure and to agree or refuse to have their disputes resolved through reconciliation mediation activity;
13.1.2. to select freely the scope of issues to be agreed mutually, to increase or decrease their demands or to refuse from dispute;
13.1.3. to accept or refuse a reconciliation mediator nominated to the case and to make a request for selecting a reconciliation mediator;
13.1.4. to select method and form of the activity, to determine and protect their positions in this activity, to receive information and to assess the conditions of dispute regulation agreement;
13.1.5. to obtain information concerning progress of reconciliation mediation activity, its results and consequences of signing signature on reconciliation agreement;
13.1.6. to obtain information concerning the consequences of voluntary non-fulfillment of obligations of a reached reconciliation agreement;
13.1.7. to refuse from reconciliation mediation activity anytime during such activity;
13.1.8. to sign an reconciliation agreement;
13.1.9. to get a reconciliation agreement confirmed and an execution order is issued by a court or to make a claim to the court in case if the other Party fails to fulfill its obligations under a reconciliation agreement;
13.1.10. to make a claim to a court in case if a reconciliation agreement is done unfairly; and
13.1.11. the other rights specified in the laws.
13.2. The Parties participating in reconciliation mediation activity shall have the following obligations:
13.2.1. to perform obligations taken under a reconciliation agreement voluntarily and fairly in case if the reconciliation agreement is signed;
13.2.2. to be responsible for reconciliation mediation service charge, work remuneration and other necessary expenses according to the rules specified in this Law;
13.2.3. to participate actively and with initiative in reconciliation mediation activity and to come to an appointment; and
13.2.4. other obligations specified in the laws.
Article 14. Rights and obligations of reconciliation mediator
14.1. A reconciliation mediator shall have the following rights:
14.1.1. to receive charge agreed with parties depending on the features of a disputed conflict and to have reimbursed the expenses related to the reconciliation mediation service;
14.1.2. to inform public about its activity by following the principle of keeping confidentiality;
14.1.3. to use its own selected method and to give the Parties oral or written recommendations concerning dispute resolution in organizing reconciliation mediation process by following the rules specified in this Law;
14.1.4. to conduct reconciliation mediation service independently from the Parties, a government body, an official, other legal persons and citizens; and
14.1.5. other rights specified in the laws.
14.2. A reconciliation mediator shall have the following obligations:
14.2.1. to refuse from providing reconciliation mediation service in case if it is impossible to conduct reconciliation mediation activity as specified in the legislation;
14.2.2. to observe reconciliation mediation service principles firmly and to conduct reconciliation mediation activity in consistency with the interests of both Parties by ensuring their equal participation;
14.2.3. to furnish the Parties with information concerning reconciliation mediation process, its purpose and consequences;
14.2.4. to maintain neutrality in disputes without having any personal interest and to manage reconciliation mediation process;
14.2.5. to observe the code of ethics of reconciliation mediators firmly;
14.2.6. to return the documents and materials given by the Parties during reconciliation mediation process;
14.2.7. not to give legal and other recommendations and assistance to any of the Parties; and
14.2.8. other obligations specified in the laws.
Article 15. Participation of advocate in reconciliation mediation activity
15.1 In case if an advocate participates in reconciliation mediation activity at the request of his or her client, the advocate shall be obliged to explain his or her client about the conditions and consequences of an agreement for resolving a dispute on reconciliation mediation basis.
15.2 In case if an advocate is a professional reconciliation mediator, he or she shall be forbidden from providing legal assistance on the given issue to or participating as an advocate of any of the Parties of the reconciliation mediation activity afterwards or conducting reconciliation mediation service for a case in which he or she was involved as advocate before.
15.3 In case if an advocate participates in reconciliation mediation activity at the request of the Parties, the advocate shall be forbidden from interfering in activity of an reconciliation mediator and hindering in reconciliation process of the Parties.
Article 16. Participation of third party in reconciliation mediation activity
16.1 In case if a right protected by law is infringed as a result of reconciliation mediation, a third party may be allowed to participate in such activity at its own request or at the request and consent of the mediator and the Parties.
16.2 Family members, relatives of the Parties and other persons may be allowed to participate in reconciliation mediation activity at the request of the Parties.
Article 17. Dismissal of reconciliation mediator
17.1 A reconciliation mediator may be dismissed by the Parties individually or on the basis of mutual agreement. In case if a reconciliation mediator is dismissed after a civil case is opened at a court or a dispute is referred to arbitrator, the court or arbitrator shall be notified about such dismissal.
17.2 In case if any circumstance, which hinders in implementing reconciliation mediation activity according to the relevant principle, is created, the reconciliation mediator shall withdraw from such activity immediately.
17.3 In case if a reconciliation mediator thinks that he or she is not in a position to bring the Parties into reconciliation by his or her own efforts, the reconciliation mediator shall be entitled to refuse from conducting reconciliation mediation activity or to terminate reconciliation mediation activity according to the opinion and consent of the Parties.

CHAPTER FIVE
RULES OF RECONCILIATION MEDIATION ACTIVITY

Article 18. Common ground of reconciliation mediation activity
18.1 A reconciliation mediator or a reconciliation mediation organization staff shall from neutral and fair position.
18.2 The Parties shall be forbidden from doing any illegal action or non-action to cause damage to neutral position of a reconciliation mediator such as meeting the reconciliation mediator without notifying the other Party and making request or demand to the reconciliation mediator for working as advocate in the given dispute etc.
18.3 A reconciliation mediation organization shall develop the policy and instruction concerning the ethics and conflict of interest of reconciliation mediator and other staff and arrange training.
18.4 Rules of reconciliation mediation activity and meaning of reconciliation shall be consistent with this Law and relevant legislation.
18.5 A reconciliation mediator or a reconciliation mediation organization staff shall not disclose any information obtained in the course of performing their duties while performing their duties or after being released from the work.
18.6 A reconciliation mediation organization and a reconciliation mediator shall take measures to prevent from illegal use of documents obtained during the course of reconciliation mediation activity process.
18.7 In the cases other than those specified in the laws it is prohibited to call a reconciliation mediator, which acquainted with the case while performing his or her duties, as a witness or to insist the reconciliation mediator to give testimony. A person, who disclosed information obtained in the course of reconciliation mediation activity process to others, shall be charged with a responsibility specified in this Law.
Article 19. Venue of conducting reconciliation mediation activity
19.1. Reconciliation mediation activity shall be conducted in a specially designated hall, which can meet the requirement of the closed meeting principle of the activity or other places as agreed by the Parties.
Article 20. Duration of reconciliation mediation activity
20.1. Reconciliation mediation activity shall be conducted with 30 days and this duration may be extended at the request of the Parties.
Article 21. Conditions of reconciliation mediation activity
21.1. Reconciliation activity shall commence from the moment when the Parties reach an agreement to implement reconciliation mediation activity voluntarily and intentionally irrespective of whether a civil case is opened at a court or dispute is referred to arbitration or not.
21.2. Reconciliation mediation activity shall be conducted closed to persons other than those permitted by the Parties to participate in reconciliation mediation activity.
21.3. A reconciliation agreement reached as a result of reconciliation mediation activity shall not infringe laws and interests of a third party.
21.4. It is prohibited to influence on the Parties in any manner such as coercing or oppressing etc.
21.5. Participants of reconciliation activity shall be forbidden to disclose any information received during the process of the activity without written consent of the information giver.
Article 22. Making application for reconciliation mediation service
22.1. A person, who wishes to get his or her dispute by reconciliation mediation service, shall make an application to a reconciliation mediation organization.
22.2. A reconciliation mediation organization shall notify the Parties of the receipt of an application and date of commencing reconciliation mediation activity.
22.3. Parties may make a special request to a reconciliation mediation organization concerning the issues such as age, sex, professional background, experience of a reconciliation mediator to be appointed.
Article 23. Form of conducting reconciliation mediation activity
23.1. Parties shall necessarily attend the first meeting of reconciliation mediation activity. The first meeting shall introduce the reconciliation mediation activity procedures, rules and rights and obligations of the Parties, hear the demands and explanations of the Parties, and determine further direction of reconciliation mediation activity.
23.2. Reconciliation mediation activity shall be conducted according to the principle of joint participation of the Parties. The reconciliation mediator shall make an individual meeting with each Party only in case if it is really necessary.
23.3. Duration of a single meeting shall be sufficient to hear explanation of the Parties and to reach mutual understanding.
Article 24. Protocol
24.1. A reconciliation mediator or a staff of a reconciliation mediation organization assigned by the reconciliation mediator shall keep protocol of reconciliation mediation activity in timely manner.
24.2. Protocol shall be prepared in Mongolian language or any other language as agreed by the Parties and include full names of the Parties, subject and duration of the activity, form and date of next activity.
24.3. A reconciliation mediation organization shall be responsible for storage and protection of the reconciliation mediation activity protocol and other documents and entitled to show to others only with consent and permission of the Parties.
Article 25. Reconciliation agreement
25.1. A reconciliation agreement draft shall be developed reflecting the content of agreement between the Parties by the Parties themselves or by a reconciliation mediator at their request.
25.2. A reconciliation agreement shall be developed in Mongolian language or other language as agreed by the Parties. The official translation of the agreement shall be attached as an inseparable part of the agreement.
25.3. A reconciliation agreement shall include the name and address of the reconciliation mediation section, names and addresses of the disputing Parties, the date of commencement of reconciliation mediation, the subject of dispute, the positions of the Parties in that respect, things agreed and other issues clearly and be confirmed by signing of the Parties and the reconciliation mediator.
25.4. A reconciliation agreement can be confirmed by the notary public and the court of the mediation section.
Article 26. Fee and charge of reconciliation mediation
26.1. A reconciliation mediation organization shall set the amount of reconciliation mediation activity fee and the charge of reconciliation mediator based on the model code adopted by the Professional Commission.
26.2. The rules of allocating fee to a reconciliation mediator working at the reconciliation mediation section under the court shall be approved by General Council of Courts and the Government Member in charge of finance. This fee shall not exceed 50 % of the court charge.
26.3. A reconciliation mediation organization and a reconciliation mediator shall be forbidden to charge more than preliminarily agreed amount.

CHAPTER SIX
RECONCILIATION MEDIATION ACTIVITY OF SOME TYPES OF DISPUTES

Article 27. Use of reconciliation mediation in civil cases
27.1. A reconciliation mediation activity may be conducted in case if the Parties jointly made request after opening a civil case at the court and arbitration.
27.2. In case if a reconciliation mediation activity is conducted after opening a civil case, the court shall suspend the opened civil case investigation and resolution activity.
27.3. In case if the Parties to reconciliation mediation activity reached a compromise, the court shall approve the compromise of the Parties according to the rules specified in the code of civil procedure and the case shall be dismissed.
27.4. In case if reconciliation mediation activity is completed without success, the court shall restore the case investigation and resolution activity and resolve the case according to its normal procedures.
27.5. In case if a civil case is opened for several demands of a claim, the Parties may use assistance of reconciliation mediator service in resolving one or several demands.
27.6. The court may determine the duration of reconciliation mediation activity to be conducted after opening of a civil case in a shorter period than as specified in this Law.
Article 28. Labor legal dispute reconciliation mediation activity
28.1. A reconciliation mediation activity of labor legal disputes shall be conducted within a labor dispute arose between an employer and an employee other than a collective dispute.
28.2. Resolution of a labor legal dispute by a labor dispute resolution commission specified in the provision 126.1 of Labor Law shall not hinder the opportunity of using reconciliation mediation activity in court resolution as specified in the provision 127.1 of Labor Law.
Article 29. Reconciliation mediation activity related to family disputes
29.1. The failure of reconciliation mediation activity conducted according to the rules of preliminary resolution outside court as specified in the provision 5.3 of this Law shall not be considered as a ground of refusal from conducting reconciliation mediation activity related to a family dispute after opening a civil case at the court.
29.2. In taking measures specified in the provision 132.1 of the Civil Procedure Code for reconciling a married couple, a court shall get assistance of a reconciliation mediator.
29.3. A court shall arrange individual and collective meetings with a married couple repeatedly and discuss mutually for determining the actual reason and ground of conflict or dispute and resolving opinions and comments of the Parties.
29.4. It is possible to let the participants of a family dispute participate in reconciliation activity by letting them approach to psychologist and get advise, meet their relatives, friends and coworkers, and hearing their opinions.

CHAPTER SEVEN
MISCELLANEOUS

Article 30. Advocacy of reconciliation mediation activity
30.1. A reconciliation mediation organization, office of a court and court information department shall implement the work of promoting advocacy of reconciliation mediation service and supporting the Parties in reaching reconciliation.
Article 31. Responsibility to be charged to violators of legislation
31.1. A person, who violated the rules specified in this Law, shall be charged with the following responsibility:
31.1.1. A person, who disclosed the information obtained during the process of reconciliation activity to others without consent of the Parties, shall be charged with penalty in an amount of 100,000 – 250,000 MNT.
31.1.2. A person, who failed to come to an appointment without an excuse as asked by a reconciliation mediator specified in the provision 11.2.3 of this Law, shall be charged with a penalty of 50,000- 100,000 MNT.
31.2. Any loss or damage caused by violation of reconciliation mediation legislation shall be reimbursed according to the Civil Code.

Article 32. Effectiveness of Law
32.1. This Law shall become effective commencing from … day of …. 20…

D. DEMBEREL,
CHAIRMAN OF THE STATE GREAT HURAL