While historically similar concepts existed in Azerbaijan, the modern definition of mediation is a new concept, and is not widely understood. The Law is based on the principles of UNCITRAL Model Mediation Law and CEPEJ guidelines.
The Law promotes use of mediation in civil, commercial, family, labor, and administrative disputes. The Law follows the so-called Opt-Out Mediation Model, by requiring parties to attend the initial first mediation session before bringing an action concerning family, labor, and business disputes. Under the Law, mediators, mediation organizations, and mediation training companies are governed by a self-regulating authority called the Mediation Council.
Any person not younger than 25 years, with higher education (irrespective of the field of education) and three years of work experience may become a mediator after obtaining an initial mediation training certificate. The Law also envisages certain incentives to apply to mediation (such as exemption from court fees) and deterrent tools to ensure parties attend the required initial mediation session (such as an obligation to cover the complete expenses of the other party and fines).
The Law also regulates how cases will be referred to mediation. In addition to the requirement that parties attend the mandatory initial mediation session, parties may voluntarily apply to mediation, and judges may refer parties to mediation with the consent of the parties. In addition, the Law regulates in detail the enforceability of mediation clauses in contracts. Similar to the mandatory initial mediation session, the Law states that in cases where there is an agreement to attend mediation before litigation, the mediator or mediation organization referred to in the agreement shall appoint a mediation hearing and invite both parties. In case the agreement does not refer to a specific mediator or mediation organization, the claimant shall invite the respondent to mediation and if the respondent fails to attend mediation, the respondent will be responsible for the expenses of the claimant and may in the future be fined for similar actions.
With regard to the enforceability of the settlement agreement, the Law states that the parties shall implement the agreement voluntarily. In case they fail to enforce the agreement, then one of the parties may apply to court or to a notary public through a simplified procedure to make the agreement an enforcement document (to be enforced by the enforcement officers).
Currently, very few providers of mediation services exist in Azerbaijan, and most mediators are not full-time. Bank Ombudsman, established under the Azerbaijan Bank Association, renders ombudsman services similar to mediation for the resolution of disputes between banks and their clients. The ARBME Dispute Resolution Center offers mediation services for commercial disputes.
By Ruslan Mirzayev, Senior Fellow-Azerbaijan, Weinstein International Foundation. The views and opinions expressed here are those of the author and not those of the Weinstein International Foundation.