Among the novels of the latest editions of the Civil Code and Code of Commercial Procedure of Ukraine, as well as the Code of Administrative Court Procedure of Ukraine an institution that is unfamiliar to the majority of domestic courts, but not new to courts of the countries of the Western world claims its attention being a dispute resolution institution with the involvement of a judge. Much is already written about this institute, but as of today the practice of its application is insignificant.
This institution differs from classical mediation by the obligatory participation of a judge who does not see into the evidence base of the parties, but only assesses the legal relationship from the point of view of judicial practice and gives appropriate recommendations. In addition, clear deadlines are set for such a settlement.
The procedure of dispute resolution through a judge in all three of the above-mentioned codes is generally identical. Thus, the dispute resolution through a judge is carried out only if the parties agree and prior to review of the merits of the case. The court decrees on carrying out a procedure of dispute resolution though a judge, which also stays proceedings for a period of up to 30 days. Dispute resolution through a judge is carried out by the judge solely, regardless of the components of the case; but in case of reopening the judicial proceeding in order to continue the consideration of the merits of the case, it should be transferred to another judge. A dispute resolution through a judge can be conducted in the form of both joint and closed meetings. The judge clarifies the grounds and subject of the claim, the grounds for the defendant’s objections herewith, draws the attention of the parties to the judicial practice in similar disputes, independently offers or gives the parties the opportunity to offer options for the peaceful settlement of the dispute. The minutes of the meeting are not kept during the dispute resolution through a judge and recording by technical means is not carried out.
It is noteworthy that during the dispute resolution the judge does not have the right to provide legal advice or recommendations to the parties as well as to evaluate the evidence in the case.
As is known, in the Constitution of Ukraine, as well as in the procedural codes hold a norm according to which the representation of a person in court is carried out solely by an attorney. However, the corresponding chapters of the existing editions of the procedural codes do not include a requirement for the representing solely by an attorney of the interests of the parties in the procedure of dispute resolution through a judge.
In order to answer the question whether the attorney’s participation is mandatory in the dispute resolution procedure, one should consider whether this procedure can be called a trial or a person’s representation in court.
Formally, the whole procedure is carried out in court involving a judge and is regulated by the procedural code.
But, on the other hand, the existing codes do not hold any indication that the dispute resolution procedure through a judge is a part of the court proceedings. Moreover, as it was mentioned above, the proceedings in the case are suspended for the time of communication between the parties and judges with the aim of a peaceful dispute resolution. After all, the codes do not include a clear rule on how to conclude a peaceful dispute resolution: it may be a claim withdrawal, a recognition of a claim or the approval of a settlement agreement; but each of the options can be implemented only after the resumption of proceedings in the case.
Thus, we believe that the dispute resolution through a judge is not part of the trial, therefore, the participation of attorneys as representatives of the parties in this procedure is not necessary.
The benefit of implementing such an institution in the domestic procedural legislation cannot be overestimated. Of course, in the hands of an unscrupulous defendant, this can be another way of abusing their procedural rights in order to delay the consideration of the case and passing judgement on the merits. But we sincerely hope that this hybrid tool, combining extrajudicial mediation and elements of judicial proceedings, will help speed up the resolution of litigation in the first instance, accordingly reduce the number of appeals and cassation complaints, and thus relieve the courts of trials. For the litigants, who really seek a conflict resolution, rather than delaying the process or exhausting the opponent, this institution will save not only time, but also nerves and financial resources.
Liubomyr Muzhyk, senior associate, dispute resolution practice, exclusively for “Yurliga”.