Notaries as Mediators in the Republic of Belarus

Abstract

Mediation as one of the means of conflict resolution is new to the Republic of Belarus. The legislation which regulates relations in the sphere of mediation is also new. The article analyzes the concept of mediation enshrined in the legislation and scientific literature. The author investigates the possibility of performing the functions of a mediator by a notary who is a professional lawyer and performs a public function to protect the rights and interests of citizens, legal entities and the state protected by law. Holding an academic degree in law, notaries do not act as officers of state authority bodies but rather as persons enjoying public trust. Thus, they may perform the function of a mediator taking advantage of their knowledge, expertise and practical experience. Notaries cooperate with citizens and representatives of legal persons on daily basis. They do not represent any party but help them avoid disputes and conflicts while remaining impartial and independent. According to Belarussian legislation notaries can be mediators but to this day only a very small percentage of notaries have been involved in this activity. Notarial activities are based on the principles of impartiality, independence and confidentiality, which corresponds with the required rules of conduct for mediators which brings the two disciplines together. The author draws attention to the issues which currently prevent notaries from full involvement into the new scope of activity. In order to ensure a meaningful dialogue between the parties the author suggests that the Belarusian Notaries Act should provide a clear definition whether notaries may carry out mediation simultaneously with notarial procedures or at the time of performing these procedures. Notaries may act as mediators not only concerning the issues related to notarial activities but also when they are solely treated as mediators. In the article, the author approaches current legislation on mediation and proposes changes in regard to the law concerning notaries that would allow them to join the mediation process more actively.