Civil Procedure Code of the Republic of Kazakhstan
(amendments and additions in connection with the updating of CONCILIATION PROCEDURES)
Article 35 Part 9
Replacement of a judge or one of the judges is possible in the case of:
1) self-recusal or recusal of a judge declared and satisfied in accordance with the procedure established by this Code;
2) prolonged absence of the judge due to illness, vacation, study, being on a business trip.
3) if no agreement has been reached between the parties during the conciliation procedures. If no agreement is reached, the replacement of the judge is carried out.
Singapore
The conciliator judge cannot examine the same "case" on the merits. He is obliged to transfer the case to another judge if the parties cannot resolve the dispute at the mediation session.
Canada (Quebec)
If there is no agreement, further proceedings are conducted by another judge.
Germany
An authorized judge or a judge executing a court order transfers the case to another judge.
Article 146 Features of consideration of cases in the order of simplified (written) proceedings
1. The statement of claim must comply in form and content with the requirements of Articles 148 and 149 of this Code.
2. The court issues a ruling on the acceptance of the statement of claim for production, in which it indicates the consideration of the case in the order of simplified (written) production.
3. The court notifies the parties, sets a deadline within fifteen working days for the respondent to submit a response (objection) to the statement of claim with the attachment of documents and evidence that substantiates it. A document confirming the sending of a copy to the plaintiff is attached to the withdrawal (objection).
3-1. In the notice, the court explains to the parties the right to file a petition for the application of conciliation procedures or to settle the dispute independently with the subsequent referral of the agreement to the court for its consideration, as well as the legal consequences of the termination of proceedings in the case provided for in part two of Article 278 of the Civil Procedure Code.
For legal certainty
The possibility of reconciliation is also provided for in simplified written proceedings. The CPC has no legislative prohibitions on reconciliation, currently the parties in the simplified procedure are also reconciling.
Article 150 Acceptance of the statement of claim
1. The judge, no later than the day following the receipt of the statement of claim, before the initiation of proceedings in the case, sends the parties an invitation to participate in conciliation procedures, in accordance with the procedure established by Chapter 11 of this Code.
1-1. If both parties present in court apply for reconciliation, the conciliation procedure is carried out on the day of filing the application.
1-2. In case of non-appearance of the party or both parties to participate in the conciliation procedure, the judge sends the invitation to the parties again.
1-3. Conciliation procedures are conducted by a judge within the time limits necessary for meetings with the parties and discussion of the terms of agreements.
The number of meetings with the parties should not exceed three times.
The Court takes measures to reconcile the parties at all stages of the process (Article 174 of the CPC). When accepting a statement of claim, the judge discusses with the parties the possibility of a peaceful resolution of the dispute, for which five working days are not enough. The plaintiff may request the return of the application - the initiation of a case is excluded.
There are no deadlines for the adoption of the statement of claim. If the defendant or the parties fail to appear at the invitation of conciliation procedures, the court may summon them to court again.
From the moment of receipt of the statement of claim, the judge takes measures to reconcile the parties and holds meetings with them. During this period, meetings of the parties with psychologists, mediators, lawyers can be organized.
If the parties agree to reconciliation, the conciliation judge makes one ruling on the acceptance of the statement of claim for production, the initiation of a civil case, the language of the proceedings, the preparation of the case for trial. The CPC in the current version of the prohibitions does not establish a single definition.
If reconciliation has not taken place, the judge indicates this in the certificate and transfers the case for redistribution to other judges.
The calculation of the time limit for the consideration of the case begins from the moment of the issuance of a ruling on the initiation of a civil case by another judge.
The period from the moment of recording the receipt of the statement of claim to the court until it is transferred from the conciliator judge to another judge will not matter for calculating the term of consideration of the case.
However, when collecting alimony or other benefits for the maintenance of a citizen, the fixed date of receipt of the statement of claim to the court will be taken into account, since the collection is made based on the date of filing a claim to the court.
Singapore
Judicial reconciliation - "Judicial dispute Resolution", free of charge. The courts recommend the parties to the ADR: mediation, etc. The deadline for accepting the claim has not been set. The plaintiff goes to the conciliator judge. No more than 3 meetings (sessions) are held. The timing is influenced by: the willingness of the parties, the desire for the process, the level of conflict and trust, complexity, and the opportunity for a balance of power.
Australia
Judicial mediation is an obligatory part of the process in family disputes.
England and Wales
Mandatory mediation is an informational session.
Canada
Filing a claim is a condition for starting mandatory mediation.
British Columbia, Alberta, Saskatchewan, Ontario, Quebec, Nova Scotia
Mandatory mediation - attending one session.
Germany
The finding of the case in the proceedings is justified by the filing of a claim. The deadline for the start of the percentage.actions – two weeks after the delivery of the application.
Korea
The parties are notified of the reconciliation meeting.
Article 155 Grounds for securing a claim
1. At the request of the persons participating in the case, the parties to the arbitration proceedings, the court may take measures to secure the claim in any situation of the case, if the failure to take such measures may complicate or make it impossible to execute the court decision.
1-1. At the stage of acceptance of the statement of claim and before the initiation of a civil case, the judge, at the request of one of the parties to the claim, in which the parties are invited to participate in the conciliation procedure, has the right to take measures to secure the claim.
Korea
In case of a special need for reconciliation, the reconciliation judge may, at the request of one of the parties, issue an order for interim measures.
Article 157 Consideration of an application for securing a claim
1. An application for securing a claim is considered and resolved by a judge on the day of issuing a ruling on the initiation of a civil case, if it was attached to the statement of claim or indicated in the statement of claim. In other cases, the application for securing the claim is resolved by the judge on the day of its receipt in court.
1-1. An application for securing a claim, in which the parties are invited to participate in the conciliation procedure, is resolved by the judge on the day of its receipt in court.
Article 160 Cancellation of the security measure of the claim.
2. In case of refusal of the claim, the measures taken to secure the claim are retained until the decision enters into legal force. The court, simultaneously with the entry into force of the decision, issues a ruling on the cancellation of the security of the claim. If the claim is satisfied, the measures taken to ensure it remain in effect until the execution of the court decision. A writ of execution on the issue of the cancellation of interim measures is not issued.
2-1. In case of termination of the proceedings, abandonment of the statement of claim without consideration, return of the statement of claim, the measures taken to secure the claim remain in effect until the court ruling enters into force.
Article 174 Reconciliation of the parties
1. The Court shall take measures to reconcile the parties, assist them in settling the dispute at all stages of the process.
1-1. The conciliation procedure can be carried out with the use of technical means. The mediation procedure with the use of technical means or any part of this process should not be recorded on video, audio or in any other form.
1-2. During the conciliation procedure, the judge discusses the circumstances of the case with the parties, clarifies the subject and grounds of the claim, asks questions, may, on his own initiative, demand evidence from the parties or other persons, investigate facts and evidence. The court, at the request of the parties, has the right to express an opinion on the outcome of the trial.
1-3. Explanations of a party or another person, the evidence presented in mediation conducted by the court, may be used as evidence in the further consideration of the case on the merits with the consent of the party who gave explanations or presented evidence.
1-4. At the request of the parties, the judge has the right to allow other persons to participate in the conciliation procedure, if this will contribute to reconciliation.
2. The parties may settle the dispute in full or in part by concluding a settlement agreement, an agreement on the settlement of a dispute (conflict) by mediation or an agreement on the settlement of a dispute by way of a participatory procedure or using other methods in accordance with the procedure established by this Code.
3. A petition for the settlement of a dispute with the use of conciliation procedures may be filed in any case of claim proceedings, including cases of simplified (written) proceedings, except for cases arising from public relations, unless otherwise provided by this Code or the law.
Singapore
In the Center of state Courts via Skype. Mediation via Skype or any part of the process should not be recorded. Reconciliation is carried out from the stage of acceptance of the statement of claim.
Active behavior cannot serve as a basis for the recusal of a judge, due to the instructions in the law. To use or not the forecasts of the court is the right of the parties. The decision will be predictable and is expected to move the parties to reconciliation. The principle of competition is not violated, since it is in the primir. procedure.
Evaluative behavior of the judge is allowed, and the judge's forecast of the outcome of the case is always decisive for the parties (Canada).
Germany
An assessment of the circumstances of the case is provided for procedures that precede oral proceedings, except in cases where an attempt at reconciliation has already been made or the procedure has no prospects.
There are two types of conciliation procedure in Nova Scotia.
1) the parties ask the judge to speak on the case,
2) in addition, the judge may hear witnesses.
Singapore
In the State court:
Neutral assessment is an early assessment of the case by the judge about the probability of victory of the parties. The assessment is important for lawsuits filed in state courts, useful for voluminous documents where conflicting expert opinions, the issue of law is raised, the parties do not want to negotiate an agreement.
A preliminary is being carried out. a conference between the judge and the lawyers of the parties to discuss the exchange of witness statements and their participation in the evaluation hearing; evaluation dates; issues contributing to the rapid conduct of the evaluation. The parties and their lawyers will present the case and evidence to each other and the judge. Witnesses may be subpoenaed.
The judge can ask questions. After that, the judge gives an assessment.
If the assessment is mandatory, the parties must fix the terms of the settlement or the decision on consent based on the assessment. If the assessment is on a recommendation basis, the parties use the judge's assessment when settling their dispute.
Korea
Parts 1-2, 1-3.
Courts consider more than 60% of cases in simplified (written) proceedings. If the parties have reconciled, it is enough to submit an agreement and a statement to the court.
The parties do not participate in the simplified (written) proceedings. If there are questions about the terms of the agreement, etc., the court proceeds to consider the case according to the rules of claim proceedings in the general procedure (subparagraph 6) of part three of Article 144 of the CPC. The exclusion of the words "except for cases arising from public relations, unless otherwise provided by this Code or the law" is provided for in the accompanying laws to the APPC.
Article 177 Approval of the settlement agreement by the court
1. The petition of the parties for approval of the settlement agreement is considered by the court in a court session. The persons participating in the case are notified of the time and place of the court session.
In case of non-appearance at the court session of the parties duly notified of the time and place of the court session, and the absence of an application for consideration of the petition without their participation, the petition for approval of the settlement agreement is not considered by the court.
1-1. A petition for approval of a settlement agreement in cases of simplified (written) proceedings is considered by the court if there is an application by the parties to consider it without their participation and there are no grounds for proceeding to the consideration of the case under the rules of claim proceedings in a general manner in accordance with the requirements of subparagraph 6) of part three of Article 144 of the CPC.
2. The court explains to the parties the legal consequences of concluding a settlement agreement before its approval, promotes the conclusion of an agreement by offering options that can resolve the dispute.
2-1. In cases considered in simplified (written) proceedings, the parties' settlement agreement must indicate that the parties are familiar with the legal consequences provided for in parts one and two of Article 278 of the CPC and they understand them.
6. A settlement agreement concluded at the stage of execution of a judicial act is submitted for approval to the court of first instance at the place of execution of the judicial act or to the court that adopted the said judicial act.
The state fee paid by the plaintiff is not refunded from the budget.
Singapore
Reconciliation is a process where a judge promotes an agreement to resolve a dispute by actively proposing measures or options. The decision remains with the parties.
Even in cases where the parties have chosen mediation, the judge can apply reconciliation at his discretion, depending on the needs of the parties, the dynamics of their relations and the nature of the case. Reconciliation is useful when one or both parties are unwilling to participate in mediation, are unable to put forward proposals to resolve the dispute, or when the parties have already been through mediation. For certain types of cases or when one or more parties do not have a legal representative, the conciliation procedure is the standard of the SRS. The judge, as an authoritative figure, plays a leading role in developing the conditions that the parties wish to consider in order to resolve their dispute.
The active role of the judge in the conciliation procedure.
The parties should be aware of the legal consequences of the agreements. Upon termination of the case in connection with reconciliation, repeated appeal to the court with claims on the same subject, on the same grounds between the same parties is not allowed. If the parties do not indicate this, the court proceeds to the consideration of the case according to the rules of the claim proceedings in the general procedure.
Clarification to exclude violations of the Tax Code, which does not provide for the return of state duty in reconciliation at the stage of execution of a court decision.
Article 179. Settlement of a dispute (conflict) by mediation
5. The judge who conducts the mediation appoints the day of the mediation and notifies the parties of the time and place of its holding. Mediation in court is conducted in accordance with the Law of the Republic of Kazakhstan "On Mediation" and with the features established by this Code.
At the request of the parties, the court has the right to postpone the mediation procedure within the time limit established by part three of this article and to summon other persons for mediation if their participation will contribute to the settlement of the dispute (conflict).
5-1. The judge helps the parties in finding their own solutions that meet their interests and does not offer solutions to the dispute (conflict).
If necessary, the judge holds separate meetings with any of the parties and their representatives to discuss issues and study possible solutions. Information obtained during an individual conversation with one of the parties may be transferred to the other party with his permission.
5-2. If an agreement has not been reached between the parties by way of mediation, the case is transferred to the judge in whose proceedings it was.
If mediation was conducted at the request of the parties by the judge in whose proceedings the case was, then further consideration of the case is carried out by the same judge.
The information obtained during mediation by the judge may be used during the consideration of the case with the permission of the party who provided such information.
Singapore
The judge assists the parties in negotiations, but does not offer solutions to the conflict, helps to focus on finding their own solutions. Judicial mediation is provided for cases filed in State courts. Lawyers will provide the judge with information on the dispute for discussion in the mediation session. This is followed by a joint meeting with the parties and their lawyers, where the judge introduces the parties to the mediation process. The parties talk about the dispute, and the judge facilitates its discussion.
The judge may hold separate meetings with any of the parties together with their lawyers. What the participant shared with the judge will not be transferred to the other party unless the party gives permission to the judge. Several meetings can be held.
As soon as all parties reach an agreement, everyone will meet with the judge together with lawyers to review and confirm the conditions for resolving the dispute.
Article 181. Settlement of a dispute through a participatory procedure
2. The participatory procedure is carried out without the participation of a judge by conducting negotiations between the parties with the assistance of dispute settlement by lawyers of both parties or other persons with higher legal education.
A dialogue was initiated on Facebook in 2017 on expanding the list of persons entitled to conduct a participatory procedure due to the lack of demand for this institution from lawyers. The idea also arose during the presentation of the draft CPC in Parliament. The public approves of the approach that grants the right to settle the dispute, including in a pre-trial manner.
Article 414. Preparation for consideration of the case in the court of appeal
2. The judge, taking into account the arguments set out in the appeal, the prosecutor's petition, makes a ruling on the acceptance of the case into the proceedings of the court of appeal and the preparation of the case for consideration. Within ten working days from the date of the case's acceptance into the proceedings, the judge sends the parties an invitation to participate in conciliation procedures.
2.1. The agreement concluded between the parties at the stage of preparing the case for trial is submitted by them for consideration and approval at a meeting of the board of the court of appeal.
2.3. If no agreement is reached between the parties, the case is transferred to another judge to continue preparing the case for trial in accordance with Article 165 of this Code.
Conciliation procedures are carried out at all stages of the process.
Article 445. Appointment of a court session of the court of cassation instance
The Court of cassation instance, after receiving the case with the decision of the judge, with the presentation of the Chairman of the Supreme Court of the Republic of Kazakhstan, with the protest of the Prosecutor General of the Republic of Kazakhstan, within three working days sends the parties an invitation to participate in conciliation procedures, copies of these documents, a notice of the consideration of the case in the court of cassation instance indicating the date, time, place of the court session or with a notification about the possibility of familiarization with their electronic copies via the Internet resource of the Supreme Court of the Republic of Kazakhstan.
Article 447. Settlement agreement, agreement on settlement of dispute (conflict) by mediation and agreement on settlement of dispute by participatory procedure
1. A settlement agreement of the parties, an agreement of the parties on the settlement of a dispute (conflict) by way of mediation or an agreement on the settlement of a dispute by way of a participatory procedure, made after filing a petition, making a submission or protest, must be submitted to the court of cassation instance in writing.
An agreement of the parties on the settlement of a dispute (conflict) by mediation or an agreement on the settlement of a dispute by way of a participatory procedure is accepted by the court in accordance with the rules of Articles 179 and 181 of this Code.
At the court session, before the approval of a settlement agreement of the parties, an agreement of the parties on the settlement of a dispute (conflict) by mediation or an agreement on the settlement of a dispute by way of a participatory procedure, the court explains to the parties the consequences of their procedural actions.
1-1. The conciliation procedure may be carried out by a judge before the court session on the basis of the petition of the parties, including with the use of technical means.
In the case when both parties present in court apply for reconciliation, the conciliation procedure is carried out on the day of filing the petition by one of the collegial judges.
The court of cassation instance has the right to postpone the court session for a period of no more than 10 working days to conduct a conciliation procedure.