Currently, the main purpose of conciliation procedures is to resolve disputes on the basis of the voluntary expression of the will of the parties. So, the parties can conclude an amicable agreement or apply other methods related to reconciliation. One way or another, this should not be contrary to federal law. There are such types of conciliation procedures as a settlement, a complaint procedure for resolving conflicts, negotiations and mediation. Let's consider them in more detail.
Concept and Key Features
The conciliation procedure in the arbitration process should be understood as the procedural possibility of the arbitral tribunal, defined by the current legislation, to assist in the settlement of the dispute submitted to the judiciary by taking specific measures under the control of the court. In any case, these measures are aimed at terminating the proceedings in this case and ending it with peace. Among the main legal features of reconciliation procedures, it is important to highlight the following:
- The use of a particular procedure is appropriate in the event of a dispute that is referred to the judicial authorities in order to resolve.
- The consideration of the conciliation procedure, as well as its implementation, takes place under the close supervision of the court. Judicial authorities are guided by the norms of procedural legislation in force in the country, as well as legal and economic feasibility.
- The key objective of the procedure is to dismiss the case through reconciliation of the parties.
Classification of Conciliation Procedures
It is important to note that the agro-industrial complex refers only to one kind of procedure related to reconciliation. It's about a settlement. Nevertheless, this variety is very difficult to consider as such, because it is rather not a procedure, but the result of certain actions. In any case, according to part 2 of article 187 of the agro-industrial complex, the legislator classifies the settlement agreement as a conciliation procedure.
It should be borne in mind that in the process of creating the agro-industrial complex in its text, one could find provisions on a fairly primitive procedure called mediation. In the final version, the legislator decided to leave only a link in part 2 of article 138 to the possibility of applying other procedures related to reconciliation (except for a settlement) to resolve disputes. However, he did not make any transfers and did not establish appropriate mechanisms for use. This circumstance is one of the drawbacks of this Code: if the current law nevertheless allows the possibility of applying a number of procedures, they are unlikely to receive sufficient distribution due to the lack of a legal framework. At the same time, the content of the agro-industrial complex contains a reference to one of the generally accepted conciliation procedures in world judicial practice. It is about mediation (clause 2 of part 1 of article 135 of the agro-industrial complex). One way or another, this gives reason to conclude that the named procedure can be used by judges of arbitration courts.
Mediation
So, to begin with, we consider the category of mediation, which should be understood as the activity associated with the provision of assistance to the parties to the dispute in resolving these disputes, carried out by a mediator (mediator), that is, a person recommended by the court. In another way, this conciliation procedure in the arbitration process is called mediation.It is advisable to consider the intermediary as an individual who has knowledge and experience in a specific area of economic turnover (for example, in the field of the securities market). It is important to add that this person should not be connected by this or that relationship with the current parties to the dispute. The following features are considered characteristic features of mediation, which is implemented under the supervision of the judiciary:
- As a rule, the mediator is registered with the judiciary as such.
- The parties apply to a specific intermediary in accordance with the recommendations of the court.
- Procedural legislation defines specific timelines for the implementation of mediation.
- One way or another, the mediator submits a report to the judicial authorities regarding the results of his activities.
Among the results of mediation, it should be noted the conclusion of a settlement agreement or the plaintiff's refusal of the corresponding claim. It is worth adding that the services of an intermediary are paid, as a rule, by agreement of the parties.
Settlement agreement
Reconciliation procedures usually come down to a settlement. From the point of view of the theory of civil procedure, it is an agreement between the parties regarding the termination of the proceedings and, of course, a dispute on specific conditions agreed upon in advance by them. Among the legal consequences of the approval by the arbitration courts of a settlement, it is important to note the establishment of obligations and rights, the resolution of a dispute, the termination of proceedings in a particular case or the enforcement proceedings and, as a result, the impossibility of a second appeal with a similar lawsuit, the possibility of enforcement by virtue of which the judicial the act by which the amicable agreement is approved is considered close in legal force and legal significance to the decision of the arbitration judicial authorities.
Features of the agreement
In the process of studying conciliation procedures in the arbitration process, it is important to mention the features of signing and implementing a settlement agreement as a specific procedural agreement:
- A settlement may be concluded in any case (this includes administrative). The exception is cases regarding the establishment of facts that are endowed with legal significance, since such cases are dealt with only in the absence of legal disputes.
- The conclusion of an amicable agreement is relevant only between the plaintiff and the defendant (parties) in a particular case, as well as a third party who declares independent claims regarding the subject of the dispute. The fact is that a third party has the right to use all the rights of the plaintiff. Other participants: third parties who do not make independent claims regarding the subject of the dispute, the prosecutor, government structures that make claims in accordance with federal legislative acts cannot be parties to the agreement in any way.
When can an agreement be made?
Such a variety of conciliation procedures of collective labor disputes, such as an amicable agreement, can be concluded at any stage of the arbitration process, whether it is the stage of preparation, trial in the judiciary, implementation of cassation or appeal proceedings. The exception in this case is the stage of initiation of proceedings in a particular case. In addition, a settlement may also be concluded in the execution of a judicial act, in other words, after the enforcement proceedings are instituted or the writ of execution is transferred by the collector for sale to the debtor's bank. It must be added that an amicable agreement cannot be concluded after a decision is made when the claimant does not present the relevant sheet for execution, because the arbitration process is already behind, and the execution of the decision has not yet begun.In this case, the settlement agreement concluded by the parties is considered a standard transaction, which is not subject to approval by the arbitral tribunals.
Additional characteristics of a settlement
In addition to the above features of a settlement agreement, this type of conciliation procedures in a civil process has the following features:
- The terms of the agreement, one way or another, should not violate the legitimate interests and rights of the disputing parties or other persons. They must not contradict legislation in force in the country.
- The agreement is empowered only after approval by the judiciary. If the settlement agreement was not submitted to the court for approval or the judicial authorities decided to refuse, such a paper is not an agreement - it is endowed with the force of a standard agreement.
The content of the settlement
It is important to note that the main content of the studied variety of conciliation procedures in labor disputes today is the definition, as a rule, of the defendant’s duties as the time and amount of fulfillment of the obligation, as well as specific conditions. It is advisable to include deferment, compensation, installment plan, transfer of debt, assignment of rights, recognition or forgiveness of debt. In addition, a settlement often includes a condition regarding the distribution of legal costs between the parties.
Approval Rules
Conducting conciliation procedures in one way or another is carried out in accordance with certain rules. Thus, the arbitration procedure code has established specific rules for the approval of the agreement, including the following points:
- The settlement agreement is confirmed by the arbitral tribunals in the proceedings of which the case is. Here the courts of the first, cassation and appeal instances may be involved.
- The issue of approval of the agreement can only be considered in the course of the court session. It can be preliminary, basic or designated specifically to solve a specific problem.
- Only an agreement can be approved by the arbitral tribunals, the terms of which under no circumstances contradict the current legislation, and also do not violate the legitimate interests and rights of others.
Definition
It is important to note that based on the results of familiarization with the issue regarding the approval of a settlement agreement, the arbitration tribunals issue a determination: on the refusal to approve and consider the problem or on approval of the agreement and, accordingly, termination of the proceedings related to the case, in accordance with Part 2 of Article 150 of the APC.
In the latter case, the determination should include information regarding the distribution of costs of a judicial nature between the parties. As a rule, they are distributed between the plaintiff and the defendant under the terms of the agreement reached by them. If this agreement is not available, the costs are allocated by the judiciary in accordance with the rules given in Article 110 of the APC in force on the territory of the Russian Federation.
Denial of Approval
A determination related to a refusal to approve an agreement is anyway subject to appeal in a general manner. The determination regarding the closure of the proceedings due to the approval of an agreement by the arbitral tribunals, as a rule, is not appealed, since a settlement is a result of the mutual will of the parties and corresponding efforts. However, the agro-industrial complex acting on the territory of the Russian Federation provides an appeal. So, the determination may be appealed by the prosecutor with his participation in the case, by third parties or even parties if their views change. The determination regarding the approval of the agreement should be immediately implemented.That is why it cannot be appealed to the court of appeal, but is subject to appeal strictly within one calendar month from the date of the appeal to the arbitration courts.
Conclusion
So, we have examined the main types of procedures related to reconciliation, and a settlement, in particular. In conclusion, it is worth noting several key advantages of these procedures. Firstly, the agreements reached by the parties as a result of the operations considered are much better executed. Secondly, this is a significant financial savings. Third, the time spent on reconciliation procedures is relatively low. All this allows us to use the studied mechanism quite widely in judicial practice.