History and development of the Institute of Conciliation procedures in Russia

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

Conciliation procedures are one of the most effective and popular tools for conflict resolution in modern society. Their role is to help the parties to the conflict find a common understanding, reach mutual understanding and agree on a mutually beneficial solution to the problem. Conciliation procedures are a more peaceful and humane way of resolving conflicts than judicial proceedings, and can be used in various fields, ranging from family and labor conflicts to business and politics. Currently, conciliation procedures have become widespread all over the world, including in Russia.

Their use contributes to improving people's quality of life, avoids lengthy and expensive lawsuits, and also strengthens trust in society and develops a culture of peaceful conflict resolution.

   Today, conciliation procedures represent a variety of conflict resolution methods that have found application in many areas of life, from business to international relations. Their value lies in the fact that they allow the parties to the conflict to find a profitable solution within the framework of a dialogue, which benefits all participants in the process. Reconciliation procedures help to reduce conflicts that may arise in different spheres of life, and increase the level of peaceful coexistence in society.

   In Western countries, including the United States and Europe, conciliation procedures are widely used to resolve a wide range of conflicts – from family and labor to business and commercial. In many Western countries, conciliation procedures are gaining more and more popularity due to their effectiveness and humanity, as well as the ability to avoid long and expensive lawsuits.

   The concept of conciliation procedures in Western countries has long-standing roots. In the USA, for example, this approach to conflict resolution has been widely used for many years. To date, conciliation procedures are a mandatory stage for resolving many civil cases, including divorces, disputes over ownership of real estate, inheritance disputes and many others.

   In Europe, conciliation procedures also have a long history. In addition, many laws and regulations of European countries support the use of conciliation procedures as an alternative to judicial proceedings. In some European countries, for example, in Germany and Belgium, conciliation procedures are actively used in the business sphere, helping companies resolve conflicts with partners and customers, as well as internal disputes.

   In general, the experience of Western countries shows that the use of conciliation procedures improves the quality of life of people, minimizes conflicts and helps to preserve peace and stability in society. The experience of Western countries also confirms that the use of conciliation procedures can be useful for various areas of life – from family relations to international relations, and can be an effective tool for resolving conflicts in modern society.

   The use of conciliation procedures can also lead to a reduction in the costs of litigation and speed up the process of obtaining a solution to the conflict. Moreover, conciliation procedures can help preserve the relationship between the parties to the conflict, which may be especially important in cases where participants in future business or personal relationships. Finally, the use of conciliation procedures can contribute to the development of a culture of peaceful conflict resolution in society, which can lead to an overall increase in well-being and prosperity ^[10].

   The institution of a settlement agreement was first mentioned in Russian legislation in the Novgorod Birch bark charter, which dates from the period between 1281 and 1313. This document probably reflected the settlement deal concluded between the sender of the letter and its recipient, as well as the requirement for its mandatory compliance by the addressee. The content of the article contains the concepts of "dress up" and "smallness", which, according to the Pskov court charter of the end of the XV century, mean the agreement of the parties through the conclusion of a settlement agreement with the participation of witnesses.

   Reconciliation procedures were used especially actively in the Novgorod Republic, including a special procedure called "world series". She demanded that the disputing parties turn to conciliators, known as "rowers", to settle the dispute and conclude an agreement. Interestingly, this procedure resembles modern mediation in many ways.

   The topic of peaceful settlement of disputes is discussed in separate articles given in the Pskov Court Charter of 1397, as well as in the Judicial Book of Ivan III. This document provided an opportunity for the offender and the victim to conclude an agreement without the participation of a representative of the judiciary, which was called "lynching", which implied the release of the offender from responsibility. The Cathedral Code of 1649 also contains similar materials.

   Arbitration courts have become an important element of the Russian legal system and have received significant development. Initially, such courts functioned in accordance with generally accepted norms, and later they were officially recognized by the state in accordance with the XV chapter "On the Arbitration Court" of the Cathedral Code of 1649.

  The Government of the Russian Empire was interested in creating a mechanism that would allow resolving conflicts between citizens without recourse to judicial authorities. In 1775, Catherine II proposed an important step in the development of institutions for the peaceful settlement of disputes by creating conscientious courts to protect civil rights based on the principle of "natural justice". These courts were designed to solve certain categories of cases, such as juvenile defendants, the insane and others.

   Such courts served to consider crimes that were not dangerous to society, acts with mitigating circumstances, as well as family conflicts. However, despite this, the decisions of the magistrates had no legal force in property disputes, and the judges did not have the authority to enforce the decision, which completely depended on the consent of the parties. Consequently, the claim, unsatisfied in the magistrate's court, was still transferred to the general jurisdiction ^[8].

  Having studied the current laws and documents of that time, it can be concluded that the initial period of development of conciliation procedures in Russia (1281-1864) represented the foundation for future legislative regulation of procedures such as settlement agreement, arbitration courts and mediation.

  In addition, participation in conciliation procedures was not only one of the ways to resolve conflicts, but also a demonstration of cultural and social status. In addition, conciliation procedures may have been used as a means of public control over justice and protection of the interests of the poor and minorities. However, with the development of legislation and legal culture in Russia, conciliation procedures have lost their original significance and began to play mainly the role of a complementary procedure in official proceedings. Currently, with the increasing number of court cases and the burden on the courts, conciliation procedures are becoming relevant again as a quick, cheap and effective way to resolve conflicts ^[9].

   In the XIX-XX centuries in Russia, more and more attention was paid to methods of extrajudicial resolution of conflicts, in particular, to a settlement agreement. This was facilitated by the reform of the judicial system in 1864, carried out by Emperor Alexander II. As part of this reform, not only the Statute of Civil Proceedings were approved, but also the Statute of Criminal Proceedings, judicial regulations and rules of punishment determined by magistrates.

  Of particular interest is the chapter "On conciliation proceedings" contained in the "Charter of Civil Proceedings". Its articles 1357-1366 relate to the reconciliation of the parties and the conclusion of a settlement deal and are included in book 3 "Exceptions from the general procedure of civil proceedings".

  According to the Statute of Civil Proceedings, the parties to the dispute had the right to voluntarily terminate the process. This usually happened when the plaintiff announced to the court his refusal of the presented claims, and the defendant agreed to the termination of the case. In accordance with the Charter of Civil Proceedings, justices of the Peace had the opportunity to conclude amicable agreements both in specially designated places and in common courtrooms. The creation of the Institute of Justices of the Peace was aimed at replacing the traditional courts, which took various steps to reconcile the parties in the process.

  Before the trial of the case at the preliminary stage, the magistrate had the authority to convince the parties to reconcile and suggest effective ways to achieve this goal.

  In accordance with Article 1359 of the Charter of Civil Proceedings , three forms of concluding amicable transactions were established: 1) by making a record, which was then subject to notarization or approval by a justice of the peace; 2) by filing a world petition signed by all interested parties; 3) drawing up a world protocol during the court session ^[8].

  However, categories of cases were established in which reconciliation was not allowed. For example, it concerned cases arising from administrative and public legal relations. The possibilities of reconciliation in cases involving harm to life and health were also limited.

  Since the beginning of 1917, Russian legislation has abandoned most of the traditions of legal regulation that existed before the revolution, and began the formation of a new system of Soviet law.

   The first act, which affected the regulation of issues of the settlement agreement, was adopted by the Central Executive Committee on July 10, 1923 and became effective from September 1, 1923 in the form of the Civil Procedure Code of the RSFSR. In this code, the institution of a settlement agreement was mentioned only as an opportunity for the parties to resolve the case peacefully, and most issues related to the conclusion and execution of a settlement agreement were left to the discretion of the court in each case.

  Conciliation procedures are used in arbitration processes, and they continue to develop thanks to the Resolution of the SRT of the RSFSR of March 14, 1923 "Rules for the production of cases in the Supreme Arbitration Commission under the Council of Labor and Defense (SRT) and local arbitration commissions". This resolution establishes that the refusal, recognition and settlement transaction will be valid if they do not contradict the law and do not harm the state interests and will be recognized by the arbitration commission.

  Further conciliation measures in the framework of the arbitration process were carried out in accordance with the "Rules for the Consideration of Economic Conflicts by State Arbitrations" adopted on June 5, 1980. These new rules approved a new method of resolving economic conflicts based on the participation of representatives of the parties in the composition of the body considering the case.

   The Civil Procedure Code of the RSFSR (hereinafter referred to as the CPC of the RSFSR), which entered into force on October 1, 1964, regulated reconciliation procedures in more detail. Article 34 of the 1964 CPC established certain criteria that the court used to approve the settlement agreement. The settlement agreement should not contradict the law or infringe on the rights and legitimate interests of others. Article 165 of the Civil Procedure Code of the RSFSR regulated the procedure for formalizing a settlement agreement. For the first time in the Rules of Civil Procedure, the proceedings could be terminated on the basis of a settlement agreement concluded by the parties and approved by the court (paragraph 5 of Article 219 of the Civil Procedure Code of the RSFSR) ^[8].

   The legislation provided an opportunity to conclude a settlement agreement at various stages of the civil process. However, at that time, the courts were not obliged to encourage the parties to conclude a settlement agreement. They only needed to inform the parties about the right to conclude an agreement and ensure control over its legality.

   The 1964 CPC was in force until the adoption of the current Civil Procedure Code of the Russian Federation, which entered into force on February 1, 2003.

   Since 1991, after the collapse of the Soviet Union, the system of conciliation procedures in Russia began to develop in new conditions. The legislation on this issue has become more complicated and the number of legal consultants, lawyers and arbitration managers has increased, who have become actively involved in dispute resolution. Today in Russia there is a variety of institutions and organizations that are engaged in conciliation procedures. Currently, the current article 39 of the Civil Procedure Code of the Russian Federation emphasizes that "the case can be completed by the parties by concluding a settlement agreement" ^[1].

   On July 24, 2002, the APC of the Russian Federation was signed, which significantly improved and regulated arbitration proceedings in detail. As part of our research, we drew attention to chapter 15 "Conciliation procedures. Settlement agreement", which describes in detail the institution of a settlement agreement ^[2].

    The adoption of Federal Law No. 102-FZ "On Arbitration Courts in the Russian Federation" on July 24, 2002 was important for the development of conciliation procedures. The Law revealed the concept of arbitration courts, established the procedure for their creation and operation, regulated the conclusion of an arbitration agreement and other issues related to arbitration courts.

    With the development of conciliation procedures in Russia, many organizations have appeared that are engaged in mediation and other forms of conciliation procedures. Currently, there are many mediation centers, as well as law firms and law firms that provide services for conducting conciliation procedures. In addition, mediation services can be provided by organizations involved in resolving disputes and conflicts in various fields, for example, in the field of labor relations, family law, intellectual property, etc. ^[13].

   There are also international and national organizations involved in the development and dissemination of the practice of conciliation procedures. One of these organizations is the International Institute for Consensus Dispute Resolution (ICARs), which conducts trainings, seminars and conferences to develop skills and knowledge in the field of mediation and other forms of conciliation procedures. National associations of mediators and conciliators also provide support to their members and coordinate work on the development and improvement of the practice of conciliation procedures. In general, the development of conciliation procedures is becoming increasingly important in the modern world, as it allows for faster and more effective conflict resolution, as well as maintaining relations between the parties ^[11].

    There is also a special trade union center in Russia that provides mediation services in the framework of labor disputes. Today, conciliation procedures are also used to resolve conflicts between citizens and government agencies, as well as in the field of commerce and business.

   However, the development of conciliation procedures in Russia is not homogeneous. Despite significant progress, there are problems in this area. For example, in Russia there are still contradictions in legislation that make it difficult to conduct conciliation procedures in some areas of life. There are also frequent cases of unprofessional behavior of mediators, which can harm the reconciliation process. Therefore, much attention is paid to improving the level of professional training of mediators and creating a legal framework that would regulate the conduct of conciliation procedures in Russia ^[7].

    In addition, an important problem of the development of conciliation procedures is the low culture of conflict resolution in society and the limited awareness of the population about the possibilities of using conciliation procedures to resolve various disputes. To solve this problem, it is necessary to carry out extensive work to inform the population about conciliation procedures, their advantages and possibilities of use in specific situations. It is also important to involve broader segments of the population in reconciliation procedures so that it becomes a more popular and widespread method of conflict resolution. Finally, it is necessary to pay attention to the effectiveness of quality control mechanisms for conducting conciliation procedures in order to guarantee their high professional qualifications and serviceability ^[9].

   Thus, the practice of using the institute of conciliation procedures differs significantly in different countries of the world. However, regardless of where these procedures are used, they often offer quick and cheap dispute resolution, which significantly saves time and resources for all parties. At the same time, each jurisdiction has its own peculiarities of using conciliation procedures, and before using them, it is necessary to refer to the relevant laws and regulations to make sure that they are suitable for a particular case.

    It should be noted that the use of conciliation procedures has additional advantages, such as maintaining the relationship between the parties and a more satisfactory result in dispute resolution. Mediation and other forms of conciliation procedures can also be useful in cases where litigation can cause serious damage to reputation or business. Due to these advantages, the use of conciliation procedures is becoming increasingly popular in various legal fields, such as family, commercial and civil law.

   It is also important to note that the effectiveness of conciliation procedures depends on the qualifications of mediators and compliance with the basic principles of these procedures. These principles include the neutrality and impar-tiality of the mediator, confidentiality of the process, voluntary participation and freedom of choice by the parties of the best way to resolve the conflict. It is also important to determine the rights and obligations of each of the parties in the process of conciliation procedures in order to achieve the best result ^[12].

    In general, the use of conciliation procedures is an effective and reliable conflict resolution tool that can be used in various areas of life. The key success factors are the correct choice of the conflict resolution method and the qualification of mediators.

   The use of the institute of conciliation procedures in Russia and abroad is a widespread practice in various fields, from business to personal conflicts. Conciliation procedures are an effective way to resolve disputes and contribute to saving time and resources for all parties.

   However, the implementation of conciliation procedures may have special features in different countries of the world. Therefore, it is necessary to refer to the relevant laws and regulations of the jurisdiction to make sure that they are suitable for solving a particular case.

    In this regard, the development of the use of conciliation procedures in Russia and abroad should be aimed at improving legislation, creating an appropriate infrastructure for mediation and arbitration procedures, as well as raising awareness and education among the population and representatives
business communities.

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