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

Naryshkina Svetlana Yur'evna ORCID: 0000-0003-4985-4747 Postgraduate student, Department "Jurisprudence", Russian State Academy of Intellectual Property (RGAIS) 55a Miklukho-Maklaya str., Moscow, 117279, Russia vik156@mail.ru Other publications by this author

The relevance of the development of the institute of conciliation procedures, their legal value within the framework of the modern civil process of the Russian Federation is predetermined by a whole set of factors.

First of all, the permanently increasing burden on the judicial system. Thus, according to the statistical reports of the Supreme Court of the Russian Federation for 2022, Russian courts of general jurisdiction considered about 40 million cases, an increase of more than a million compared to the previous year. An increase in the number of cases considered is also observed in the framework of arbitration proceedings + 62,500 cases compared to the reporting period for 2021. It seems quite obvious that the subsequent increase in these figures ^[15].

Secondly, the need to develop conciliation procedures is due to the improvement of existing organizational and legal mechanisms for resolving legal disputes aimed at protecting the violated rights of various participants in legal relations. The purpose of such mechanisms is to restore constructive trust relations between the parties to a legal conflict, to make a correct and mutually beneficial decision ^{[8, pp. 37-40]}.

Thirdly, the possibility of a quick, high–quality and effective way to resolve judicial disputes, including without resorting to the stage of enforcement of compulsory in the future.

At the same time, the data provided by the Judicial Department at the Supreme Court of the Russian Federation indicates a rather modest application of the legal institute under study. Thus, out of the total number of all civil legal disputes in 2022, only 724 were settled using a conciliation procedure ^[15].

A separate problem, in the context under study, is the legal regulation of the mechanism for implementing compulsory procedures in civil and arbitration proceedings, since legislative practice has a lot of legal gaps concerning both the definitive apparatus and the implementation procedure itself.

The legislator has not integrated the concept of "conciliation procedures" into any of the current regulatory legal acts. In the modern doctrine of law, many scientists pay attention to the study of such a definition, for example: V. G. Sargsyan ^{[14, pp. 149-152]}, E. V. Koroleva, L. V. Nabokov, A.V. Krysanova ^{[10, pp. 131-136]}, E. R. Ivashchenko ^{[9, pp. 124-126]}, O. A. Ryabus, A.V. Staritsyn ^{[13, pp. 218-223]}, etc., however, their judgments are far from unambiguous.

The polysemantic nature of the interpretation of the concept of compulsory procedures within the framework of the civil process leads to ambiguity in the interpretation of its essential aspects by the scientific community.

Thus, E. R. Ivashchenko considers conciliation procedures as a phenomenon of a legal nature, which has as its main goal the restoration of partnership relations between the parties to a legal conflict, through the use of legally provided methods and techniques at the initiative of the parties ^{[9, pp. 124-126]}.

O. A. Ryabus, A.V. Staritsyn call conciliation procedures a legitimate way of consensual settlement of a dispute with the help of a third party, taking into account the capabilities of the parties ^{[13, pp. 218-223]}. However, dear authors do not take into account the fact that certain types of conciliation procedures are possible without the participation of third parties – for example, a settlement agreement or a negotiation process.

V. G. Sargsyan says that conciliation procedures are a procedurally established possibility of the court and under its direct control, to settle a dispute by peaceful means of resolution ^{[14, pp. 149-152]}.

The correlation of the above views allows us to formulate the following definition.

Conciliation procedures are procedural and legal interaction of the conflicting parties within the framework of a particular legal dispute with or without the involvement of third parties, aimed at changing their strategic behavior – from confrontation to compromise cooperation – on ways out of the existing legal conflict based on the application of substantive law, entailing the rejection of the use of the jurisdictional method of its permissions expressed in agreement and mutually beneficial, trust-based cooperation.

Thus, conciliation procedures are characterized by:

– directly independent and final settlement of a legal conflict – dispute;

– applied on the basic principles of voluntariness, cooperation, confidentiality and equality;

– legal result of conciliation procedures – legal compromise;

– third parties may be involved in their implementation – mediation, judicial reconciliation;

– can be applied at any stage of legal proceedings, i.e. before the court decision.

The above makes it possible to formulate the following additions to the current legislative array in the context of the stated issues, namely, Part 1 of Article 153.1. of the Civil Procedure Code of the Russian Federation ^[2] to change, presenting the editorial in the following content:

"Conciliation procedures are an integral part of legal proceedings, which consists in a comprehensive resolution of a legal dispute through the use by the court of measures of a conciliatory nature and properties, directly under its control, guided by the legitimate interests of the parties, the principles of voluntariness, cooperation, confidentiality and equality, as well as the tasks of justice itself as a whole." Similar additions should be made to Part 1 of Article 138 of the Agro-Industrial Complex of the Russian Federation^[3].

Since October 25, 2019, legislative additions (innovations) regarding the implementation of conciliation procedures concerning their terms, species diversity, the procedure for implementation, as well as the return of the state fee in the case of such reconciliation – No. 3-FKZ; No. 197-FZ; No. 198-FZ have come into force ^{[6, pp. 103-105]}.

The existing list of their procedures – mediation and settlement agreement – has been supplemented with such as mediation, judicial reconciliation, negotiations.

However, legislative practice still does not have a single guide for their application, in connection with which the literature has long been proposed ^{[12, pp. 62-70; 5, pp.34-36]}:

– creation of a competent specialized body for the settlement of disputes between the parties;

– having analyzed the practice of such a body, develop an appropriate Federal Law, which in its structural content should combine:

1) the concept of judicial reconciliation, its principles of implementation and implementation;

2) the legal status of the specialized body for the settlement of disputes between the parties;

3) a list of the rights and obligations of judicial conciliators, mediators, intermediaries and other persons entitled to a peaceful settlement of the dispute;

4) the terms of conciliation procedures and other provisions necessary for the full and effective practical implementation of the legal institution in question.

Supporting in their judgments such authors as M. V. Autonomova, A. A. Budyakov, E. A. Kharlamova ^{[4, pp.213-216]}, R. R. Magizov, C. F. Nizamova ^{[11, pp.8-11]} with the aim of popularizing and further developing the institute of conciliation procedures in arbitration courts and courts of general jurisdiction, we consider it appropriate:

– to formulate the concept of "alternative dispute resolution" as a set of legally non-prohibited ways of resolving legal conflicts by protecting the legitimate interests of participants in civil (arbitration) proceedings with the help of the most effective legal means of their reconciliation with the help of a third party or independently determining their procedural status, the direct procedure for resolving the legal dispute that takes place, as well as the procedure for execution the decision made.

– to develop at the legislative and state level a unified Strategy for the application of the institute of conciliation procedures in the realities of Russian legal relations;

The strategy should have chapters in its content:

1. General provisions on the application of compulsory procedures;

2. The possibilities of using the institute of conciliation procedures in various legal proceedings;

3. The main indicators of the use of conciliation procedures in the Russian Federation;

4. Normative – legal and organizational basic provisions of the application of compulsory procedures in certain types of civil proceedings;

5. Establishment of legitimate interests and compliance with procedural and legal guarantees of participants in legal proceedings in the mechanisms of application of certain types of compulsory procedures;

6. Provisions ensuring the safety of the use of conciliation procedures.

In addition, we believe that the introduction of the institution of reconciliation into the civil process is hindered, among other things, by the lack of awareness of citizens regarding the possibility of using such procedures, and as a result, the emergence of distrust in them in comparison with the judicial act of justice that completes the process.

What can be eliminated by:

– increasing the level of legal awareness (literacy) of the population,

– providing mediators and other intermediaries with the opportunity to inform about their activities, making it open and accessible to citizens ^{[7, pp. 149-150]}.

The above innovations, in our opinion, will contribute to the extensive use of conciliation procedures within the framework of Russian legal proceedings and ensure their effectiveness, giving rise to subsequent transformations in the judicial sphere, which can bring the administration of domestic justice to a qualitatively new level, strengthening guarantees for the protection of the rights and freedoms of its participants.