of June 29, 2016 No. 3
About conciliation of the parties by consideration of civil and economic disputes by courts
Having discussed results of generalization of practice of conciliation of the parties by consideration of civil and economic disputes, for the purpose of ensuring the correct and uniform application of the procedural legislation the Plenum of the Supreme Court of the Republic of Belarus DECIDES:
1. Draw the attention of courts that achievement by the parties of civil and economic disputes of conciliation, settlement and the dispute resolution without carrying out legal proceedings in essence is one of the priority directions of optimization of judicial loading and further enhancement of judicial activities.
Conciliation of the parties promotes forming of culture of constructive permission of conflict situations, recovery and strengthening of partnership, economy of budgetary funds, reduction of the court costs assigned to the parties, provides effective protection of the rights and legitimate interests of citizens, legal entities and the state.
2. It must be kept in mind that conciliation of the parties is allowed in court at any stage of civil or economic process from the moment of initiation of proceeedings, and also in enforcement proceeding.
Conciliation of the parties can be reached both with assistance of court, and by mediation application. On economic cases for the purpose of dispute settlement holding conciliatory procedure is possible.
The conclusion of the voluntary settlement, the mediativny agreement, the conciliation agreement, refusal of the claimant of the claim or recognition of the claim by the defendant can be result of conciliation.
3. The court should render active assistance in achievement of conciliation by the parties on specific dispute, if necessary to explain them benefits, procedure and effects of carrying out mediation or the conciliatory procedure, the conclusion of the mediativny agreement, the conciliation agreement, the voluntary settlement. The explanation of the right to conciliation is reflected in court documents (for example, determination about adoption of the action for declaration and initiation of proceeedings or about initiation of proceedings and preparation it to legal proceedings, the protocol of preliminary judicial session).
4. Explain to courts that the claimant, the defendant, procedural accomplices (claimants, defendants), and also the third parties declaring independent requirements regarding dispute as they have procedural law and the claimant's obligations (Article 65 of the Code of civil procedure of the Republic of Belarus (further - GPK), Article 64 of the Economic Procedure Code of the Republic of Belarus have the right to the conclusion of the voluntary settlement, participation in mediation or the conciliatory procedure (further - HPK)).
The third parties who are not declaring independent requirements regarding dispute rights of the Party are in full not given also the right to the conclusion of the voluntary settlement, the agreement on application of mediation, the mediativny agreement, the conciliation agreement have no.
5. It is necessary to consider that agents of the parties and the third parties declaring independent requirements regarding the dispute having the right to sign the voluntary settlement, the agreement on mediation application, the mediativny agreement, and over economic disputes - also the conciliation agreement only in cases if such right is specially stipulated in the power of attorney issued to them represented.
The document confirming special powers of the representative is subject to attaching to case papers.
On civil disputes citizens can authorize the representatives on making of the specified actions by also oral statement made in court which is subject to entering in the protocol of judicial session (Article part four 76 GPK).
Legal representatives of the citizens who do not have capacity to act in full, the voluntary settlement having the right to sign, the agreement on mediation application, the mediativny agreement, and on economic disputes - also the conciliation agreement without special registration of the specified power (Article part one 74 GPK, part two of Article 77 and part six of article 78 HPK).
6. The court has the right to transfer dispute for settlement with participation of mediator (mediators) only after the conclusion by agreement parties about mediation application. Mediation can be carried out on civil or economic case at any stage of legal proceedings, but before removal of court to the consultative room for pronouncement of the court decree on the substance of dispute.
The agreement on application of mediation is signed in writing. Exchange of messages with use of mail service or other types of communication providing written fixation of declaration of will of the parties including the direction of the claim, action for declaration (statement) and answers to them in which one party offers to settle dispute by carrying out mediation is equated to written form of the agreement, in particular, and other party expresses consent to mediation application (article 10 of the Law of the Republic of Belarus of July 12, 2013 No. 58-Z "About mediation").
The statement of the parties for agreement signature for application of mediation is entered in the brief protocol, the protocol of judicial session according to requirements of the procedural legislation (Article part two 285 GPK, article 189 HPK).
7. In case of the conclusion agreement parties about application of mediation on civil case the court needs to establish the term of carrying out mediation which cannot exceed six months from the date of agreement signature about mediation application. At the same time proceeedings stop based on part one Item 4-1 of Article 160 GPK.
Removal by the court considering economic cases of determination about transfer of dispute for settlement by the parties with participation of mediator (mediators) is the basis for leaving of the action for declaration (the statement, the claim) without consideration (the paragraph the seventeenth article 151 HPK).
8. It must be kept in mind that mediation is carried out according to the procedure and on the conditions determined by agreement parties with mediator according to requirements of the Law of the Republic of Belarus "About mediation" and the Rules of carrying out mediation approved by the resolution of Council of Ministers of the Republic of Belarus of December 28, 2013 No. 1150.
As a result of the negotiations held by the parties with participation of mediator, the dispute can be settled by the conclusion of the mediativny agreement which is constituted in writing, is signed by the parties and mediator.
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