Кайбылдаева Бегаим Мухитовна
Генеральный директор ОсОО “Бизнес Софт”
Управляющий директор ОсОО «Мобайл Сервис Групп»
Арбитр МТС при ТПП КР, Медиатор, Юрист
Лингвист, Член АЮК, Член КРКП и СБС, Член РСМ и НЦМ
Alternative Dispute Resolution (ADR) - mediation and arbitration.
Abroad Online Dispute Resolution is already beginning to be practiced. It is believed that mediation in the Kyrgyz Republic will be in demand specifically in the online format, as a form of mobile commercial (in business) or social service (family mediation, for example). Our society can “jump over a step”: much remains to be prepared, but the more interesting this process and the more opportunities for creative-minded people.
In online dispute resolution, the role of managing information flows is often carried out not only by arbitrators and mediators, but also by computers and software. The participation of information and communication technologies in the settlement of the dispute is called the fourth party.
In addition to two contending parties and neutral third party - intermediary, the designation of “technology” as the fourth participant is a metaphor that emphasizes how much technology can have a powerful transformative effect on the already familiar traditional tripartite conflict resolution model. The fourth side provides the controversial with a whole range of possibilities, by analogy with the role of the third party in the conflict. While a fourth party may from time to time take the place of a neutral intermediary in dispute resolution procedures by implementing negotiation automation procedures, it will often play the role of a third neutral party to assist in finding options for an agreement.
Brief overview of online dispute resolution sites online abroad:
- used in the USA since 1998, has a number of industry applications. Through this system, USD 1.9 trillion of disputes were settled, 150000 arbitrators were registered in the system, of which 30000 successfully used the system to resolve disputes. The maximum price of a resolved dispute is USD 12.5 million. This platform has contributed to the resolution of 200000 economic disputes. Success was achieved thanks to industry solutions, such as for insurance companies, and the provision of a high degree of automation for the settlement of small cash disputes. The main advantage of automating the negotiation process is that it carries the potential of saving budgets and saving many years of litigation for the parties to the dispute. The main disadvantage is that it deals only with monetary claims, where there is no dispute regarding the grounds for the occurrence of obligations. Therefore, in order to realize its full potential, automation systems for the negotiation process should be used in addition to other ODR systems.
SquareTrade - was a leading provider of ODR for mediation in the consumer sector until 2008. The system was used in resolving disputes of the largest eBay and PayPal trading floors. The system has proven itself in resolving consumer disputes. The advantage of working with a large number of disputes is that similar problems arise repeatedly, which allows you to group disputes into categories. There are data from analytical studies on consumer loyalty in the trading platform after experience in participating in the resolution of the conflict using the System.
Modria - this system has a multi-stage dispute resolution process from diagnosis and negotiation to mediation, and is focused on resolving complex disputes, where Mondria has combined a development team with AAA - the American Arbitration Association. The system is expected to handle 100000 disputes annually.
RTA Pi Claims Portal - system for the settlement of disputes for compensation for harm to life, health, property as a result of traffic accidents. Used in the United Kingdom of Great Britain and Ireland with a dispute price of less than STLG 25000. Uses a preliminary protocol for the settlement of small disputes about compensation for damage resulting from road accidents (Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).
Nominet, which provides online mediation between owners of ccTLDs (national top-level domains), namely between domain name owners and trademark holders, resulting from someone registering a domain name in the .uk domain name space, which is identical or similar to the point of confusion with the registered trademark, to benefit from its recognizability / reputation.
Small Claims Mediation Scheme - practiced in the courts of the United Kingdom and is an algorithmized procedure of one-hour mediation by phone. The annual number of mediation sessions was 10000. In development of this technology, a program of mandatory pre-trial mediation on family disputes in the courts of Mediation Information and Assessment Meeting (MIAM) has been developed since 2011.
MoneyClaim Online - also used in the United Kingdom to resolve disputes between borrowers and debtors at a dispute price of up to STLG 100000.
7thMediation.RF contains a module for initiating negotiations at the stage of family mediation / divorce proceedings.
e.Dogovor.ru - Online service for the resolution of commercial disputes. A dynamically changing world requires that claims and actions be considered online, competently, carefully and respectfully, without prevarication.
Online mediation is a modern way to resolve conflicts.
They turn to mediation when they need to save money, time and there is a need to feel emotional security throughout the resolution of the entire conflict. The Law of the Kyrgyz Republic “On Mediation” No. 161 as of July 28, 2017 defines the mediation procedure as a way to resolve conflicts with the assistance of a mediator on the basis of the voluntary consent of the parties in order to achieve a mutually acceptable solution. Accordingly, the basic principles of mediation are the obligatory participation of parties and the intermediary, and the expected result is the development by the parties of a compromise solution. But what if the opponents are in different cities or, for various reasons, such as disability, cannot directly participate in mediation procedures? The next way out is to use Internet technology. These include telephone conferencing, video conferencing, skype, email and various chats. Carrying out the online mediation procedure allows the parties and the mediator to be in different places at the same time. Communication takes place in a chat, which allows all interlocutors to see each other at a specific time.
They may be located in different countries, but it is important that they adhere to uniform standards and professional codes. This allows us to consider the subject of the dispute comprehensively, with maximum regard for the interests of the parties and understanding of sociocultural features. The emphasis is on justice, but it takes into account the understanding of justice of each conflicting party.
A mediator helps to get out of a stressful or conflict state and determine ways to resolve a dispute. Practice shows that the parties cannot find a common language and independently resolve the dispute, because they are not trying to understand its reasons. The mediator, being a professional person, seeks to establish and eliminate the cause of the conflict and find the right solution, neutralizing the emotions of the parties. To do this, he or she needs to perform a series of actions. This is an exchange of information, identifying problems, determining the interests of each of the parties, searching for their common ground and the most suitable way out of this situation.
This is followed by the exchange of counter offers and arguments between the parties, determining the real state of affairs and drawing up a mediation agreement.
The mediator should be neutral, since it is he or she who creates emotionally comfortable conditions. For this, confidential discussions of the conflict with each party can be held via e-mail. Depending on the location of the counterparts and their desires, joint discussions and individual negotiations can take place synchronously or at different times using conference calls. Thus, online dispute resolution is a quick, convenient and effective way to resolve a conflict using an intermediary using the Internet. However, there are a number of disadvantages. For example, possible unstable connection and poor connection, inability to sign mediation and other agreements using EDS or to verify participants, which is especially important since legally significant documents must be signed in mediation. The agreement will need to be signed by the parties and sent by post, and this, in turn, can also be regarded as a disadvantage. Transfer will take a certain time, and when carrying out many procedures "on line" - it is ineffective, since paperwork of a large volume is technically difficult to track.
Statistics show that online dispute resolution is most common used in the United States of America. Foreign practice shows that online mediation can be used to resolve a wide range of problems - from interpersonal to interstate conflicts. It also involves electronic commerce and online trading in various goods. For example, the international site eBay.com/ru. Thousands of trading operations are carried out there every day, so conflicts over untimely delivery, damage to the goods at the time of transportation, conflict with what is presented on the website and so on is inevitable. To resolve conflicts on the site eBau.com / ru online mediation is used. The buyer can contact the seller by email or phone. If the telephone conversation does not help to reach an agreement, the parties provides an opportunity to use the “Square-Trade” resource, where the parties agree to involve the mediator as a professional intermediary in the settlement of the dispute. From this moment, the discussion of the conflict takes place on an electronic resource with the participation of a mediator. In our country, online mediation is not developed. This is largely due to the fact that its classical variants in the country are not yet in demand in comparison with the West. The category of online mediation in the current legislation of the Kyrgyz Republic, unlike the countries of Anglo-Saxon law, is not fixed, which necessitates its development and approval at the legislative level. Taking into account the minuses of the online method of resolving conflicts, ideally, digital mediation should be carried out using a universal platform that would provide the parties with full functionality and efficiency. At a minimum, it should be accessible for instant connection of all participants in mediation, which in turn should be verified. The platform should allow participants to work on the text of the agreement simultaneously and together, and provide the opportunity to sign it electronically.
This becomes possible with the help of electronic digital signatures, however, a number of organizational issues immediately arise related to the parties obtaining an electronic digital signature and its application.
Thus, in order to reach a professional level of online conflict resolution, the system should be worked out as much as possible both from the technical side and from the side of the law. This will become possible only when classical mediation in our country becomes the most popular. Then the costs of developing an online mediation system will become rational and fully justified.
As a result of globalization, in the framework of which the technological revolution took place, new less expensive and more effective methods of communication (email, skype and other Internet resources) were formed, which have been used in the field of mediation.
In countries of Anglo-Saxon law, the procedure for online mediation is used quite widely.
Using the latest types of communication, the mediator, which is a neutral party that helps to resolve the conflict between the parties, must take a number of actions, including:
- exchange of information;
- identification of the problem;
- determination of interests of each of the parties to the conflict;
- search for common ground between conflicting parties;
- search for the most suitable way out of this situation;
- exchange of proposals, counter proposals, arguments between the parties;
- determination of the real state of affairs;
- drawing up a mediation agreement.
We have compiled this list on the basis of an analysis of legislative norms, scientific and practical literature, as well as on the basis of mediator functions performed when resolving a conflict.
The list includes the most important mediator actions and is open. The mediator performs all these functions in real time and during direct negotiations at a meeting with conflicting parties.
We consider mediation as an alternative way to resolve various in nature, but above all civil disputes with the participation of a professional mediator, helping the parties to get out of a stressful or conflict state and find ways to solve the problem.
Practice shows that the parties in this state cannot find a common language. Often, the conflicting parties are not able to resolve the conflict on their own, as they are not trying to figure out its true cause.
The mediator is a professional person seeking to establish and eliminate the cause of the conflict and find the right solution to it, neutralizing the emotions of the parties. Thus, the main tasks of the mediator are to identify and establish the reasons that led the parties to the inability to agree and resolve the conflict.
The question arises: can a mediator fully achieve the goal of reconciliation of the parties, interacting with them only with the help of modern telecommunication technologies, i.e. not having personal contact with them, not seeing their emotions, not feeling their direct relationship to the situation? Carrying out the mediation procedure online enables the parties and the mediator to be in different rooms at the same time.
The parties communicate with the mediator in a chat (communication resource), which allows all interlocutors to see each other at a specific time. Individual (confidential) discussions of the conflict with each of the parties can be held via e-mail.
Depending on the location of the parties and their desire, joint discussions and individual negotiations can be held synchronously or at different times using conference calls.
Thus, the actual and technical possibilities of conducting mediation using the communicative resources of the Internet (e-mail, skype, conference calling, chat, etc.) are an objective reality, and the relations associated with their use in the mediation procedure are subject to legal regulation.