The problem of better subsidizing legal proceedings and rise in numbers of legal cases is getting more and more acute in the majority of countries. Different solutions to these problems are being worked out in the USA and some other countries. One of wide-spread means is mediation, related to alternative methods of reconciliation. There exist various kinds of mediation: pre-trial, court, etc.

Adjustment of disputes by means of mediation allows the parties to minimize time and money consumption for reconciliation.

The problem of rising expenses for legal proceedings and the numbers of legal cases, read in commercial courts, has affected Belarus as well. Belarusan legislators have made up their minds to use international experience to introduce mediation as a way out.

The main regulations on adjustment of disputes by means of mediation are fixed in chapter 17 of Commercial Procedure Code of the Republic of Belarus (further on – CPC¹).

The notion of reconciliation by means of mediation and its characteristics.

Reconciliation by means of mediation is a novelty in our legislation, therefore analysis of major regulations will help comprehend mediation as such and use it correctly in dealing with economic disputes later on.

Belarusan legislation practises court mediation, i.e. mediation in court. Let us consider main features of the “Belarusan variant” of court mediation.

Adjustment of disputes by means of mediation – is a legal investigation stage, i.e. one of the development phases of legal investigation procedure having its own goals.²

Goals of mediation are laid down in Art. 153 of CPC: aiding the parties in defining the actual circumstances of their dispute; in comprehending reality and legal relevance of their position in the dispute; in comprehending the requirements they are obliged to fulfill and pretensions they present; clarification, comparison and approximation of attitudes to adjust the dispute; search for ways out of the conflict and recommendations for the procedure of adjustment, which satisfies both the parties.³

Adjustment of disputes by means of mediation is only possible in court of first instance. This regulation results from chapter 17 of CPC, sect. II on “legal proceedings in court of the first instance”. Thus being a phase of legal investigation in commercial court of the Republic of Belarus mediation can be viewed only as a stage of legal investigation only in court of the first instance. But for all that one has to bear in mind that mediation is the second phase of legal investigation after the initiation of proceedings. In case proceedings are not initiated it will be irrelevant to speak about mediation in commercial court of the first instance.

Belarusan legislation categorically states that adjustment of any disputes on civil legal relationship can be done by means of mediation (part 2, Art. 156 CPC⁴). Mediation in administrative legal relationship, special legal proceedings and some other kinds of legal proceedings is not possible, for they are not civil and legal by nature.

Reasoning from the above mentioned features of court mediation we can define adjustment of disputes by means of mediation the following way: adjustment of disputes by means of mediation – is a stage of legal investigation in court of first instance originating from civil and legal relationship.

The procedure of adjustment of disputes by means of mediation

The procedure of adjustment of disputes by means of mediation as such is not settled in Belarusan legislation yet. CPC defines only the first stage – pronouncement of court decree of first instance on settling a dispute by means of mediation, and the last one – confirmation of agreement between the parties in court or commercial court’s decision on cessation of adjustment of the dispute by means of mediation and passing on to another phase of legal investigation.

The procedure of adjustment of disputes by means of mediation cannot be settled by the legislation, for the procedure itself bears recommendatory character as the result of “uniqueness” of each case, and on the other hand defining a procedure of adjustment of disputes by means of mediation is only possible for psychologists in our opinion, since the procedure of mediation is in fact psychological recommendations for mediators

The procedure of adjustment of disputes by means of mediation falls into three phases, following one after another (the division is relative): 

Assigning a mediator.

After a writ is taken with the fulfilment of all the requirements determined by CPC of the Republic of Belarus, the court decides to accept the writ and initiate proceedings.

Adjustment of disputes by means of mediation is only possible by mutual consent of both the parties. If a trial is already started and the parties decided to agree they will have to apply to commercial court with a petition for settling the dispute according to mediatory procedure. Apart from that, commercial court should on their own initiative suggest the parties settling the dispute by means of mediation. The parties have the right to agree to that or refuse. When the parties agree to the suggestion of commercial court, the court assigns a mediator. A mediator is assigned by commercial law by both the parties’ consent for ten days starting from the day when the writ is taken and drawn up properly. The court pronounces its decision to assign a mediator. The deadline of conducting mediation is necessarily set in the decision and cannot be more than a month.

It is also determined that the procedure of assigning a mediator should go within the legislation. The resolution on assigning a mediator for adjusting the dispute is the result of choosing a mediator. However the procedure of assigning a mediator is not regulated in our legislation. Such a regulation will hopefully appear in the near future, since adjustment of disputes by means of mediation is a novelty in our legislation and practice of law using. In our opinion the parties should agree on a mediator themselves.

Mediator.

According to Belarusan legislation a mediator in commercial court is an official having appropriate qualifications, relevant to adjust a dispute (Art. 155 CPC⁵), i.e. a mediator possesses the following features: a) he/she is an official in court of the first instance, since mediation being a stage of legal investigation is only peculiar of court of the first instance; b) he/she is to have qualifications relevant to adjust a dispute.

Officials in commercial court are generally judges of commercial court, officers of the court and deputy judges. Each of them has special requirements from the legislation: education level, age, experience, etc. Judges in commercial courts try a lot of commercial and other economic cases. Thus, their job cannot be called easy. When mediators are appointed out of the judges of commercial court, then the major goal of mediation –relieving judges of their duties – loses its sense. Besides, the major goal of court and the judge as officials of Themis is adjustment of essential disputes. So it means that appointing a mediator out of judges of commercial court cannot be viewed as a natural way out to find appropriate people for mediation.

Qualifications relevant to adjust a dispute is the necessary educational and experience level in certain branch which helps to form an objective view on a dispute. As far as commercial, business and other economic cases lie within the jurisdiction of commercial court, a mediator should have a good command of commercial law, commercial procedures and civil law. The above mentioned requirements are universal to any official in commercial court. As far as a mediator does not settle a dispute but only helps to adjust it peacefully, it is necessary for him/her to gain special experience in the field of adjustment of disputes, i.e. a mediator should be good at paraphrasing, summing up, listening, dealing with people’s feelings and emotions, be unbiased and use alternatives, etc.

Taking all these criteria into consideration we can conclude the following: mediators are an independent category of officials in commercial court with all the necessary qualifications and experience. Therefore it is necessary to lay down legal status of mediators as officials in commercial court and establish a special institution of court mediators, probably on analogy with officers of commercial court.

Civil Procedures Codex of Belarus defines mediator’s authorities in Art. 154. Thus a mediator has the right to:

1. Examine the documents presented by the parties;
2. Get all the necessary advice, regarding adjustment of disputes, from experts;
3. Look through the material of the case, share his/her opinion on the propriety of the dispute and requirements;
4. Give his/her recommendations about a quicker adjustment of all the controversial issues and securing business relations between the parties.

A mediator helps to adjust a dispute or some controversial issues the best way possible. Yet a mediator has no right to conduct any legal proceedings. Such an inability to conduct legal proceedings is categorically laid down in Belarusan legislation (part 2, Art. 154 CPC). It stems out of specific goals of mediation. Mediation should help achieve an agreement over the whole case or in certain aspects of it.

The result of mediation.

The parties may or may not achieve an agreement following mediation. When mediation in commercial court led to a mutual agreement to adjust the dispute without court examination the parties can conclude a treaty on the following:

1. The plaintiff refuses to file a suit or some issues out of it;

2. The defendant admits the suit or some issues out of it;

3. The parties conclude a new treaty and the plaintiff calls back his suit;

4. The parties conclude an amicable agreement.

The parties can adjust not only the complete case but also its single issues in their agreement of lawsuit. The results are then recorded in the agreement of lawsuit. Then the parties sign the agreement to secure it. But the agreement can be concluded and the dispute adjusted only after the ratification of the agreement on adjustment of the entire dispute or some single issues in commercial court.

This necessity to confirm the agreement in commercial court is explained by the initiation of proceedings. After a trial is started commercial court is charged to try the case and pronounce its judgement on the case (Art. 4 CPC). The results of adjustment of a dispute by means of mediation arranged properly allow the court to try the case correctly and in time. When a dispute is adjusted by means of mediation and an agreement on the whole case is concluded, commercial court ratifies the agreement. The ratified agreement is the basis for closing down legal proceedings, as is stated in Art. 149 of CPC. If the parties come to an agreement over controversial issues of their dispute, such an agreement is ratified by the court as well. The facts of the case accepted by the parties as the result of the agreement are accepted by commercial court as facts which do not require further arguments. Thus the parties are relieved of the duty to prove the facts they have agreed on. Such a situation fosters the adjustment of a dispute.

If adjustment of a dispute by means of mediation does not end in an agreement, commercial court pronounces its resolution to withhold the adjustment by means of mediation. The exact time and venue of preparatory sitting of the court are stated in the resolution. The commercial court’s resolution to withhold the adjustment of the dispute by means of mediation is sent to the parties in the trial.

Legal procedure of trying a case, where an agreement over the whole case or some issues from it is not achieved, is continued according to Belarusan legislation.

Conclusion.

Adjustment of disputes by means of mediation is a new stage of legal proceedings in commercial court of the first instance.

The introduction of mediation into Commercial Procedure Codex should be viewed as a positive phenomenon, which helps a legislator to relieve commercial courts of a number of cases through agreements over the whole case or some of its issues. Besides, a possibility to adjust a dispute “peacefully”, if laid down, will raise law culture and law awareness of businessmen.

The institution of court mediation is new to our legislation, so it’s only natural that there are some drawbacks in our legislation which need to be eliminated. Firstly, the procedure of choosing a mediator by the parties should be settled legally. Secondly, the legislation should be correct and clear about mediators as such, namely about their legal status, qualifications, special training. It would be ideal to pass a law “On court mediation” dealing with the procedure of choosing a mediator, their legal status, social protection; principles and major targets of mediation, etc.

______________________________________