Position of implementation on a pilot project to introduce In civil legal proceedings of conciliation procedures involving judges (judicial mediation)

Approved by the Bylaw of Chairman

of Supreme Court

of the Republic of Kazakhstan

K. Mami

"11" in April 2014 number 92

Position of implementation on a pilot project to introduce

In civil legal proceedings of conciliation procedures involving judges

(judicial mediation)

1.General provisions

1.Real Position worked out in accordance with the Civil Procedural Code of the Republic of Kazakhstan (hereinafter - the CPC) and the Law of the Republic of Kazakhstan dated January 28, 2011 "About Mediation" (hereinafter - the Law "About Mediation"), defines the goals, objectives and procedure for implementing pilot project on introduction in civil proceedings of conciliation procedures involving judges (judicial mediation).

2. Concepts used in this Position

2.The following concepts are used in this Position:

1.Judicial mediation - conciliation transaction (conflict) between litigants with the assistance of the judge, implementing conciliations;

agreement of transaction (conflict) - written agreement of litigants achieved as a result of judicial mediation.

3. The goals and objectives of pilot project

3. The purpose of the pilot project is implementation in civil proceedings judicial mediation by means of transaction (conflict) with the assistance of the judge implementing conciliation.

3.Objectives for the pilot project are:

1)Expansion the scope of conciliation;

2) reduction load on the judges and minimization of cost participants of the process and court to consideration and resolution of cases;

3) detection the concernment of participants in civil turnover non-judicial transaction and conflicts.

4. Principles of conducting of the pilot project

5.Judicial mediation conducted by the agreement of parties by the judge conducting conciliation.

6. Judicial mediation is based on the principles of:

1.    voluntariness;

2) equality of the parties mediation;

3) the independence and impartiality of the judge conducting conciliation;

4) inadmissibility interference in the mediation procedure;

5) confidentiality;

6) compliance with the requirements of acting legislation

5.Participants of the pilot project

7.Participants of the pilot project are the district (city) courts, specializing in civil сases of general jurisdiction located in regional centers, as well as the appellate judicial collegiums in civil and administrative cases of regional and equivalent them courts.

6. Procedure for implementation of pilot project

The pilot project is being implemented in three main areas (segments): organizational, informational and educational.

9. Organizational segment of the pilot project provides:

opening cabinets for carrying out mediation procedures in the order of judicial mediation in courts taking part in the pilot project;

2) organization of the judges who implement conciliation, the Chairman of the Appeals judicial collegiums in civil and administrative cases of regional and equivalent them courts.

10. Information segment of the pilot project provides:

1.    placement on the Internet resources of the Supreme and local courts information of conducting a pilot project for the implementation of judicial mediation, as well as the creation of the topical section on the pilot project on the Internet resources of courts taking part in the pilot project;

2.    Conduction of explanatory work about the implementation of the pilot project on the use of conciliation procedures in the courts through the media, TV;

3.    creation of information (discussion) places on television channels with the participation of judges, including conciliation professional mediators, legal practitioners and scientists;

4.    the placement of information stands on a pilot project on implementation of conciliation procedures in the courts.

11.Educational segment of the pilot project provides:

1) activities to study the international experience on the use of mediation procedures in the courts, including the participation of the judge conducting conciliation procedures (judicial mediation);

2) training in reconciliation skills of judges who conduct conciliation through seminars, training and distance learning.

7. Conduction judicial mediation

12. The order of judicial mediation is determined with reference the requirements of Articles 49, 193, 247, 367 CPC and the following rules:

1) The judge in charge of the case, the courts of first instance or appeal at any stage of the proceedings shall ask the parties about the possibility of judicial mediation;

2) in the case of an agreement by the parties on judicial mediation, the judge in charge of the case, in accordance with paragraph 7) of Article 242 CCP shall suspend the proceedings for a period not exceeding ten days;

3) based on the definition judge the case is transferred through an automated distribution judge in charge of the conciliation, the parties agree and define the date and time of the judicial mediation;

4) judge implementing conciliation to judicial mediation is guided by the norms established by the Law "About Mediation" and CPC, except the rules on the conduct of the court record;

5) judge implementing conciliation with the consent of the parties or at their request, have the right to be allowed to participate in the conciliation procedures of other persons, if it is necessary for purposes of judicial mediation;

6) agreement of transaction (conflict) reached by the parties during mediation conciliation procedures shall be in written form and signed by the parties;

7) The agreement shall contain information on the judicial mediation, the subject matter of the transaction (conflict), the judge, asking for conciliation and the parties have agreed terms of the agreement, the methods and timing of their execution, the parties' commitment to confidentiality of mediation and judicial consequences of their failure or improper performance;

8) the parties' agreement to transaction (conflict) in the order of judicial mediation, perfect after filing an appeal,must be expressed in written statements to the judge of appeals court;

9) when the parties to the settlement agreement (conflict) in the order of judicial mediation judge in charge of the case, makes a decision, the decision on its approval and dismissal of the case in accordance with subparagraph 1.4) of Article 247, Article 367CPC;

10) in determining the decision on approval of the settlement agreement in the order of judicial mediation and termination of proceedings the court indicates the return of the state fee in accordance with Paragraph 3 of Article 248 of Code of Civil Procedure;

11) If the parties fail to reach agreement in mediation or judicial order terms of the agreement have not been approved by the court, the proceedings resumed, and the hearing is conducted in a general procedure.

8. Organization of pilot project

13. oversight judicial collegiums in civil and administrative cases of the Supreme Court of the Republic of Kazakhstan:

1) is the coordinator of the pilot project;

2) provides methodological and regulatory support for a pilot project;

3) directs courts taking part in the pilot project, the appropriate informational materials;
4) summarizes the information received from the courts taking part in the pilot project
14. Responsibility for coordinating the implementation of the pilot project in the local courts the responsibility of the Chairman of the Appeals against decisions of civil and administrative cases of regional and equivalent them courts

Upon completion of the pilot project coordinator is
Chairman of the Supreme Court of reporting information about its results and suggestions about the feasibility of implementing a pilot project mechanisms in all courts.