Conciliation Procedures Research Articles

Retraction: Conciliation procedures in civil proceedings: Comparative legal aspect

Zhumayeva, M. S. , Kassenova, A. Z. , Zhailin, G. A. , Tlegenova, F. A. , & Akhmetov, Z. M. (2022). . Conflict Resolution Quarterly, 40(), 61–74. https://doi.org/10.1002/crq.21343 The above article published online on 14 April 2022 in Wiley Online Library (wileyonlinelibrary.com), has been retracted by agreement between the Editor, Helena Desivilya Syna, and Wiley Periodicals, LLC. The retraction has been agreed following concerns raised by a third party regarding the peer review process. Further investigation by the publisher has found manipulation of the peer review process. As a result, the conclusions reported in the article are not considered reliable.

Разъяснение сторонам права на примирение как обязательное процессуальное действие суда

The article is devoted to one of the important procedural actions of the court — explaining to the parties the right to settle the dispute peacefully. The article defines an independent and mandatory procedural action of the court as an explanation. By analyzing judicial practice, the consequences of the court explaining to the parties about the possibility of settling the dispute peacefully are revealed. The author substantiates that the active role of the court in clarifying the right to reconciliation is a necessary component of effective judicial protection, and also serves as an additional incentive for the active use of conciliation procedures.

Банкротство энергетических компаний в России и Китае: правовое регулирование

This article compares Russian and Chinese legislation on the bankruptcy of energy companies employing a comparative analysis method, identifies similarities and differences in legal regulation. The theoretical relevance of this work is to identify the main legislative approaches to the legal regulation of bankruptcy of energy companies in Russia and China, thereby providing a foundation for further research on this issue. The practical relevance of this work is the possible use of the best practices of legal regulation of bankruptcy relations of energy companies in Russia and China. Despite the significant influence of state regulation on the economy, both in Russia and China, bankruptcy legislation generally corresponds in its content to market standards of bankruptcy regulation. In terms of bankruptcy regulation of energy companies, Russian bankruptcy legislation, unlike Chinese legislation, has more specific features. Chinese bankruptcy legislation is supplemented by the decisions of the State Council of the People’s Republic of China and the practice of higher courts, as well as by widely used conciliation procedures.

Dispute settlement with the participation of a judge in the context of conciliation procedures under national procedural law

Dispute settlement with the participation of a judge in the context of conciliation procedures under national procedural law

VECTORS OF THE DIRECTION OF DEVELOPMENT OF THE DOMESTIC LEGAL DOCTRINE IN THE FIELD OF PROTECTION OF CIVIL RIGHTS, FREEDOMS AND LEGITIMATE INTERESTS

The article is devoted to determining the main ways of development of legal doctrine. It is shown that the issues of protection of civil rights, freedoms and legitimate interests are of fundamental importance in all branches of law, and in modern conditions the problems of improving the mechanisms of alternative (non-judicial) legal protection come to the fore. The domestic system for the protection of violated and contested rights is three-tiered and includes: state (judicial) protection, alternative (private law) protection in the form of arbitration proceedings and self-defense of law. Until now, it has not implemented a mechanism for resolving legal conflicts. The classification of types of dispute settlement into out-ofcourt and judicial is substantiated, the civil law nature of all forms of out-of-court reconciliation is proved. The phenomenon of judicial reconciliation is analyzed. The nature of the judicial conciliation procedure is analyzed.

Legal coordination: value and legal aspect

The article reveals the value and legal content of legal agreement as a general legal category, which includes a set of methods for regulating legal relations on the basis of solidarity and the presence of mutual interest. The prerequisites for the formation of a modern understanding of the essence of legal agreement are given, and classical philosophical positions on the value characteristics of conciliation procedures are revealed. The features of the relationship between the nature of consensus as a result of legal agreement and the legal categories that are closely related to it are characterized. The value properties of coordination in law are determined, influencing society’s ideas about the sought category. The impossibility of using national and religious values as a basis for achieving public consent is substantiated. The interdependence of ensuring public law and order and increasing the level of legal culture as a secondary result of a long process of applying sustainable forms of conciliation procedures is revealed.

JUDICIAL MEDIATION IN CIVIL PROCEEDINGS REPUBLIC OF KAZAKHSTAN

The paper describes the main stages of the emergence, formation and development of judicial mediation in Kazakhstan civil proceedings. The legislation on judicial mediation and the practice of judicial mediation have been studied. The achievements of the judiciary in the settlement of disputes arising from various spheres of legal relations through conciliation procedures, including judicial and classical mediation, are noted. The socio-legal significance of conciliation procedures, which include elements forming the institution of restorative justice, is determined. The study of the conciliation procedure of judicial mediation allowed the authors to establish that today the assistance of courts, conciliation judges, retired judges to the peaceful settlement of disputes is an effective measure to reduce the level of conflict among the population and unloading of courts. Meanwhile, as judicial practice shows, the assistance of courts to the peaceful settlement of a dispute has a positive effect on increasing the level of legal culture of the population and its confidence in the judiciary. The authors show the consistency of judges, conciliatory judges, retired judges in the peaceful settlement of a dispute, the relevance of the conciliation procedure of judicial mediation in society. In the course of the research, normative legal acts regulating the procedure for the peaceful settlement of disputes, conceptual and strategic documents on the development and improvement of the national judicial system, pilot projects of the Supreme Court of the Republic of Kazakhstan on reconciliation in court, before court and outside court, statistical data of courts on conducting conciliation procedures were used.

MEDIATION IN CRIMINAL PROCEEDINGS AS A SPECIAL MECHANISM FOR CONFLICT RESOLUTION

In modern Kazakhstan judicial proceedings of civil and criminal cases is the primary mode of protecting constitutional rights and freedom. These days conflicting parties are becoming increasingly interested in settling disputes on a mutually advantageous basis on their own, while exercising control over the procedure and its result. Today, considerable attention has been paid to the problems of conciliation. The importance of the out-of-court settlement of legal disputes has been emphasized for several years by the leaders of the highest organs of State power in Kazakhstan. Also, there is some positive experience in introducing conciliation procedures through a mediator in the legal system of countries. In many developed countries, mediation exists and is used as a specific form of dispute settlement in conjunction with judicial proceedings. However, introducing the best practices of conflict settlement remains little studied in Kazakh jurisprudence. Currently, mediation is becoming an increasing well-know and widespread method of mediation in conflicts. In both civil and criminal cases and material, the resolution of the conflict between the parties through mediation procedures is increasingly finding its application. One of the main goals of mediation is to reduce conflict in society, be achieved through consolation procedures. The mediation procedure is reflected in the basic principle of the criminal process – the adversarial nature and equality of the parties. The suspect, the accused, the defendant can freely deny their quilt or plead guilty, reconcile with the victim, conclude a procedural agreement, an agreement to achieve reconciliation through mediation…

The concept and importance of settlement agreements in commercial proceedings

The article establishes that a settlement agreement in commercial proceedings is a voluntary agreement between the parties to a conflict to resolve a dispute which arose between them in the course of conducting economic activity or in the course of performance of economic contracts. Such an agreement may be concluded both before the dispute is resolved in court and directly during the court proceedings. It is an effective means of dispute resolution, as it avoids lengthy and costly court proceedings and ensures a more prompt resolution of the problem on the merits between the parties to the conflict.
 It is argued that settlement agreements are an important tool in the economic process, since with their help it is possible to: 1) to save the parties to the dispute on court costs, as well as to save time of courts and judges who are already working in difficult conditions with a significant overload; 2) to maintain normal relations between the parties in conflict. Settlement agreements can help reduce tensions between the parties and increase mutual respect and trust between them; 3) eliminate the risk of uncertainty, as court decisions may not always fully take into account the interests of the parties to the dispute, while settlement agreements usually satisfy the interests of both parties; 4) increase the efficiency of the dispute resolution process, as they can be concluded more quickly than in court. In addition, the conclusion of an agreement allows the parties to resolve the conflict themselves, satisfying each other's interests to the maximum extent possible.
 It is noted that the legislator has a rather superficial approach to the regulation of conciliation procedures in commercial proceedings, which is a significant gap. In particular, it is important to ensure that the obligations undertaken by the parties to the conflict are compulsory.

Эффективность примирительных процедур в Российской Федерации

The relevance of the effectiveness stated in the article, including the problems of conciliation procedures in the Russian Federation, is due to the fact that they occupy an important place in the public life of civil society. The article analyzes the legal mechanisms of pre-trial settlement of conflicts and disputes between the parties with the help of conciliation procedures with the participation of a mediator. The purpose of the article is to study the opportunities provided by the law for the implementation by the courts of the tasks of reconciliation of participants in disputable legal relations. Here, some problems of judicial conciliation in resolving disputes are analyzed. Some changes in procedural legislation are proposed, as well as a set of organizational and financial measures aimed at developing and popularizing conciliation procedures in Russian society. The rather rapid development of entrepreneurship in the country has also led to a large number of controversial issues in doing business, which has led to an increased interest in the rapid resolution of disputes through conciliation procedures. Increasing the effectiveness of decision-making by the method of reconciliation requires a deep analysis of the adopted regulations. The author analyzed the legal support of conciliation procedures, briefly defined the principles of conciliation procedures, noted the distinctive features of the procedures. A brief analysis of the various criteria by which the effectiveness of the conciliation activity of the mediator is assessed is given, the necessary requirements for the full-fledged activity of the mediator himself are outlined. The results of the study can be used to develop an effective legal framework for the development of the institution of conciliation procedures in the Russian Federation.

Court-Mediator Interaction in Civil Conciliation Procedures

The article highlights key aspects of research-to-practice project “Conciliation in civil and administrative procedure” conducted by the Chair of civil and administrative procedure. Professors of the Chair analyse results of the projects, identify challenges and assign goals for a future reference period. The authors of the article analyse the work on the organization of the mediators’ interaction with the courts and the practice of applying the mediation procedure in court cases in face-to-face and online formats. The advantages of the model, in which the mediator’s duty is organized in the courts on a permanent basis, are revealed. The article analyzes the powers of the court to initiate conciliation procedures in court proceedings, analyzes the right of a judge to appoint a conciliation procedure on his own initiative. The regularities that allow to identify the relationship between the activity of judges in offering mediation procedures to the parties and the successful decision-making by the parties in favor of conducting a conciliation procedure are revealed. The article analyzes the problems of judicial mediation. Proposals have been made to create and legislate an algorithm for the interaction of the mediator and the court during the conciliation procedure after the initiation of proceedings in the case. The authors of the article consider the possibility of using the institution of suspension of proceedings in connection with the use of conciliation procedure. The problem of the mediator’s lack of a special procedural status is analyzed, which deprives him of the opportunity to participate in the proceedings on the case and complicates the process of interaction with the judge. The authors formulated the main tasks set for the implementation of research-to-practice project “Conciliation in civil and administrative procedure” in the next reporting period.

Optimization of the Civil Process and the Results of Conciliation Procedures

The issues of verification by the court for the results of the parties’ conciliation activities are analyzed. The limits of the control activity of the court are determined when it approves the settlement agreement. The nature of reconciliation results is investigated in the context of specific types of conciliation procedures: mediation, negotiations, judicial mediation. As a result of the analysis of doctrine and judicial practice, the author concludes that it is expedient to transfer the authority to certify and legally examine the results of any conciliation procedures to a notary. This proposal is considered in the context of optimizing the civil process and reducing the burden on the judicial system.

Сertain types of administrative procedures regarding the formation and implementation of state policy in the sphere of social protection of persons with disabilities

The article reveals the peculiarities of certain types of administrative procedures regarding the formation and implementation of state policy in the field of social security for persons with disabilities.
 It was determined that certain types of administrative procedures regarding the formation and implementation of state policy in the field of social protection of persons with disabilities have an impact on such key issues as the lack of a single clearly defined model of state policy development; the presence of a large number of normative legal acts in the field of social protection of persons with disabilities, which in practice has a negative effect on the process of realization by such persons of their rights and freedoms.
 It is emphasized that the development and formation of state policy depends on the state of affairs management in its territory and the ability of the authorities to responsibly and effectively manage the spheres of people’s lives, especially persons with disabilities.
 Considered such separate types of administrative procedures as: rule-making, establishment and approval procedures. In particular, it is stated that the main purpose of rule-making is the formulation of new legal norms that are inherent in social relations, that is, the modeling of social relations that are acceptable or necessary from the standpoint of the state or civil society. Attention is drawn to the fact that compliance with the procedure for review, adoption and entry into force of normative legal acts is one of the conditions for the legality of the rule-making process.
 It was determined that the establishment procedures relate to the activities of bodies of the appropriate level regarding the creation, reorganization, liquidation of organizational structures of bodies that directly implement state policy in the field of social protection of persons with disabilities.
 It was emphasized that the main purpose of conciliation procedures is to streamline the issuance of conciliation documents and to introduce the main principles of state policy on the conciliation system in the field of social protection of persons with disabilities.
 It was concluded that the rule-making, establishment and approval procedures in the field of social security of persons with disabilities represent a systematized set of actions regulated by legislation, which establish a legal framework, influence the creation, reorganization, liquidation of organizational structures of bodies that directly implement state policy in the field of social security of persons with disabilities and regulate relations arising between bodies and entities that are participants in these legal relations and are directly related to the issuance of documents of a consensual nature.

The Institute of Reconciliation in Russian Law of the XI-XVI Centuries

The object of the study is pre-trial and judicial conciliation procedures in conflicts between subjects of Russian monarchs. The subject of the study is the legal norms regulating these procedures, their genesis and development since the formation of the Old Russian state, contained in the legislation of individual principalities and the Moscow State. The need to write this article is caused both by the general vector of development of the science of the history of state and law of Russia, and by not quite correct ideas about the history of the institute of reconciliation among domestic researchers, especially specialists in the field of criminal law and procedure. The purpose of this work is to restore the scientific nature of the study of the genesis of the institute of reconciliation in Russian law. Particular attention is paid to the involvement of judicial practice illustrating the widespread use of conciliation procedures, including in the commission of serious crimes. Comparative legal analysis allowed us to show the development of the institution, the persistent desire of the legislator to reconcile the parties, including in the commission of serious crimes that caused significant property damage. The conducted research allowed us to conclude that reconciliation between the conflicting parties, carried out since ancient times according to custom, has already been legally regulated in the Moscow Kingdom in three directions: 1) in a pre-trial order; 2) after applying to the court, but before the start of the consideration and 3) after the verdict, before the judicial duel.

Conciliation procedures in the resolution of labour disputes

It has been emphasized in the article that many employees and employers increasingly choose alternative methods of labour dispute resolution (alternative dispute resolution – ADR) – conciliation procedures, such as mediation. ADR offers a means of ensuring justice in the workplace for more workers at a lower cost and helps to “clean up” the backlog of statutory dispute resolution institutions, and thus helps public institutions to meet society’s need for labour dispute resolution more effectively.The author has drawn attention to the fact that historically, organizations responded to conflict only when it arose; they did not develop planning by conflict. However, today the situation has changed dramatically and organizations are increasingly implementing dispute resolution planning systems, which represent a systematic approach to conflict prevention, management and resolution that focuses on the cause of conflict within the organization.The author has concluded that the important features of project systems for resolving labour disputes – ADR are: 1) to help resolve labour disputes/conflicts, bringing common sense, goodwill and professionalism to the fore; 2) to provide a safe environment for expressing one’s positions, because disagreements and problems must be freely highlighted; 3) stimulate a clear and balanced decision, which should be the product of a free and constructive discussion, in which everyone has the opportunity to express their position freely and without hesitation.The author has summarized that the introduction of ADR in the organization, the resolution of internal complaints, disciplinary procedures and the implementation of the conflict management system has a number of advantages. These include: greater transparency of workplace procedures, procedural flexibility, efficiency and confidentiality that ensures party confidentiality and protects the organization’s reputation. ADR can also offer greater “sensitivity” to the needs of a particular workplace and especially its employees in highly sensitive and personal disputes, such as claims of sexual harassment, harassment, mobbing, etc. In addition, in facilitating consultative ADR processes, an agreement reached in a workplace dispute may contain a wide range of new outcomes that are not normally part of a court decision, and which may provide conflict resolution options that better suit the needs of each party.

Медиация и нотариат: опыт Франции и России

Mediation as a procedure for a peaceful settlement of disputes is gradually entering the legal life of many European countries. Mediation being in the “set” of conciliation procedures proposed by the state as an alternative to trial, as a friendly settlement of legal conflict, is developing in a priority order. One of the areas of development is the application of the procedure in notarial activity. The French notary achieved in this area certain results that are of interesting for study, analysis, and subsequent perception, taking into account Russian legal realities. A notary mediator, a notary who knows and accepts mediation as a way of resolving a dispute, a notarial intermediary is not only the names that are interesting for the theory of the civil process, bur they are notarial practices. The use of various aspects of mediation in notarial activity allows us to talk about the reality of the “union” between notaries and mediation, its organic character due to the similarity of the goal, objectives, principles of the notary and mediator. At the same time, attention is drawn to the presence of a number of problems that impede the active promotion of mediation into the sphere of notaries.

Communicative Competence of Judicial Conciliator

Analyzes one of the alternative ways to resolve conflicts — judicial reconciliation. A general description is given, and the legal foundations of this institution are revealed. In difficult modern conditions, this method is actively used for various disputes arising in the legal field. There are many opinions of scientists and lawyers about the similarities and differences between mediation and judicial conciliation procedures. The authors give a number of characteristic features of the judicial reconciliation procedure, according to which these categories can be distinguished, which confirms their opinion that these processes are not identical. The entire course of the judicial conciliation procedure is carried out with the involvement of an independent mediator, the functions and tasks of which are carried out by the judicial conciliator — a retired judge. The whole course of settling a disputed situation, maintaining stable relations between the opposing subjects, preventing hostility between them and concluding a final mutually beneficial and compromise agreement depends on it. To ensure the peaceful flow of the conflict resolution process, the judicial mediator must have a certain amount of skills and abilities, which are structural elements of the ‘communicative competence’ category. In this study, special attention is paid to the professional skills of a judicial mediator in the communication process. Such levels of formation of the competence of a judicial conciliator as the level of development, the level of experience, the level of skill and, finally, the level of leadership are considered. The authors pay special attention to communication techniques, the introduction and application of which during the conciliation procedure allows to ensure its peaceful course, which motivates the opposing subjects at the stage of exit from the conflict situation to conclude an agreement, taking into account the interests and opinions of each of them.

SETTLEMENT OF CASES AND DISPUTES IN CIVIL LAW AND PROCEEDINGS IN KAZAKHSTAN (ACHIEVEMENTS, PROBLEMS AND PROSPECTS)

The article describes the history of the emergence, formation and development of peaceful settlement of cases and disputes in civil law and judicial proceedings of the Republic of Kazakhstan. The achievements of the Republic of Kazakhstan in the settlement of cases and disputes through conciliation procedures were noted, promising directions for strengthening peace and harmony in the country were revealed, problematic issues facing civil law and judicial proceedings were indicated. The authors found that the settlement of cases and disputes by peaceful means is consistent with the conceptual ideas of the development of the national legal system. Based on this study, it has been revealed that the existing set of ways to settle cases and disputes, known as the alternative dispute resolution system, has gone through several stages of development. The historical and legal analysis allowed the authors to determine the trend of development and improvement of the national legal system towards simplification of legal proceedings and humanization of legislation. Along with this, to determine that today the peaceful resolution of cases and disputes, on the one hand, is the main factor in reducing the level of conflict in the country and the judicial burden, and on the other hand, an indicator of increasing the level of legal culture of the Kazakh population and its confidence in the judiciary. The authors show the socio-legal significance for civil law and judicial proceedings in Kazakhstan of informal and flexible conflict resolution procedures forming the institution of restorative justice, which arose as an alternative to punitive justice. In the course of the research, concepts and categories developed by civil law and judicial proceedings, normative legal acts regulating the procedure for settling cases and disputes, conceptual and strategic documents defining the development and improvement of the national legal system, statistical data of courts on conducting conciliation procedures were used.

ЗАРУБЕЖНЫЙ ОПЫТ ИСПОЛЬЗОВАНИЯ ПРИМИРИТЕЛЬНЫХ ПРОЦЕДУР В АРБИТРАЖНОМ ПРОЦЕССЕ: ПЕРСПЕКТИВЫ ПРИМЕНЕНИЯ В РОССИИ

The article examines the legislation of foreign countries on the reconciliation procedure, namely the provisions regulating the work of conciliation procedures that are not represented in Russian legislation. The author identifies possible problems of applying the conciliation procedures discussed in the article on the territory of the Russian Federation. The relevance of the work lies in the high importance of the institution of reconciliation as a way of settling a legal dispute. Conciliation procedures are now important in resolving conflicts between the parties to the dispute, as well as in increasing citizens' confidence in the court and the judicial system as a whole. The purpose of the study is to analyze the provisions of the legislation of foreign countries on conciliation procedures in the arbitration process and to identify the possibility of using previously unknown to Russian legislation conciliation procedures. The subject of the study is the norms of the procedural legislation of the French Republic, the Norwegian Law on Arbitration, as well as the legislation of the United States of America on conciliation procedures. By analyzing the norms of the current foreign legislation and doctrine, the author substantiates the practical impossibility of applying the conciliation procedures presented in the article. This conclusion is made on the basis of an analysis of the provisions of the arbitration procedural law of Russia regulating reconciliation issues. The author notes that the current state of the institute of reconciliation in Russia simply will not be able to properly settle the issues of a new type of conciliation procedure.

Possible ways to improve the institution of conciliation procedures in civil proceedings

The subject of the research in this article is the norms of procedural law that characterize such a special segment of relations within the framework of domestic civil proceedings as the institution of conciliation procedures. The author in the article analyzes the legislative provisions that formulate the construction of the concept of conciliation procedures, speaking about its legislative "defects". The problem is also aggravated by the lack of unity of views on its explanation in the scientific community, which necessitates a separate study focusing exclusively on the definitive apparatus. The problematic field of Russian legislation is also the diversity of types of conciliation procedures, as well as the specifics of their implementation in the activities of subjects of disputed legal relations in the context of the legal conflict that has arisen, to which the author pays special attention in view of their multifaceted significance and role in judicial practical application, defining such basic legal parameters as "alternative dispute resolution", mediation, settlement agreement, judicial reconciliation, etc. To conduct the research, the author used a methodology that includes an analytical review of the normative legal and scientific literature on the subject of research, synthesis and generalization of the collected data, the formation of optimal parameters for the application of the model of conciliation procedures in civil and arbitration proceedings. The result of the work done was the original author's proposals and recommendations of the legislative "revision" of procedural legislation, forming innovations in law. In particular, in the form of draft articles, an updated definition of conciliation procedures is proposed, their characteristic features are highlighted, their functional significance is determined, their specific types are isolated. The author's vision of the updated Strategy of applying the institute of conciliation procedures in the realities of Russian legal relations is formulated. In their entirety, the components of the novelty of the article.