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Comments on article 179. Dispute (conflict) settlement in accordance with the procedure of mediation of the Civil Procedure Code of the Republic of Kazakhstan
1. The parties have the right to file a petition for the settlement of the dispute (conflict) through mediation before the court is removed to the conference room in the courts of the first, appellate, and cassation instances.The petition of the parties for the settlement of the dispute (conflict) through mediation may be filed in the court of cassation, if this does not require additional procedural actions and suspension of the case. Simultaneously with the petition to the court of cassation, the parties must submit an agreement on the settlement of the dispute (conflict) through mediation.
2. Upon application for mediation by a mediator and submission to the courts of first and appellate instances of the agreement concluded by the parties with the mediator, the proceedings on the case shall be suspended in accordance with subparagraph 7) of Article 272 of this Code for a period not exceeding one month.
3. Upon application for mediation by a judge of the first or appellate instance, the court has the right to suspend the proceedings in accordance with subparagraph 7) of Article 273 of this Code for a period not exceeding ten working days.
4. For mediation in the court of first instance, the case is transferred to another judge. At the request of the parties, mediation may be conducted by the judge in charge of the case.
For mediation in the court of appeal, the case is usually referred to one of the judges of the collegial composition of the court.
5. The judge who conducts the mediation appoints the day of the mediation and notifies the parties of the time and place of its holding. Mediation in court is conducted in accordance with the Law of the Republic of Kazakhstan "On Mediation" and with the specifics established by this Code. At the request of the parties, the court has the right to postpone the mediation procedure within the time limit set by part three of this article and to summon other persons for mediation if their participation will contribute to the settlement of the dispute (conflict).
6. There is no record of mediation in court.
7. If an agreement on the settlement of a dispute (conflict) through mediation is concluded at the stage of execution of a judicial act, it is submitted for approval to the court of first instance at the place of execution of the judicial act or to the court that adopted the said judicial act.
1. If the parties to the case file a petition for the settlement of a dispute (conflict) by way of mediation in the courts of the first and appellate instances, it shall be satisfied before the court is removed to the conference room. The application of such a petition, as a rule, entails the postponement or suspension of the proceedings in the case.The parties' petition for the settlement of the dispute (conflict) through mediation may be filed with the court of cassation, however, the following restriction is established for its satisfaction: if this does not require additional procedural actions and suspension of the case. Such a rule is established in order to speed up the process of restoring violated rights, taking into account the time frame for consideration of cases in the courts of first and appellate instance, where the parties could exercise such a right in full. At the same time, if at the same time as the petition for the settlement of the dispute (conflict) through mediation in the court of cassation, the parties submit an agreement concluded between the parties with the participation of a professional mediator, the court may approve it if there are legal grounds and there are no legal prohibitions.
2. Upon application for mediation by a mediator and submission to the courts of first and appellate instances of the agreement concluded by the parties with the mediator, the proceedings in the case must be suspended in accordance with subparagraph 7) of Article 272 of the CPC for a period not exceeding one month. It follows from the above that the court may suspend the proceedings for different periods, but within one month. The Law on Mediation provides for longer periods for mediation, but these periods apply to cases where mediation is conducted on citizens' requests without going to court.The rule established in subparagraph 7) of Article 272 of the CPC that, when extending the period of mediation, the parties must inform the court about this by joint written notification concerns the following cases:, when the proceedings were initially suspended for a period of less than one month and an extension is possible only within the same one-month period.The powers of mediators are regulated in the Law "On Mediation". In accordance with this Law, mediation can also be conducted by a lawyer, provided that the relevant certificate is available, if the mediation is conducted on a professional basis.
3. The reduced time limits for mediation by a judge - no more than ten working days - are set taking into account the time limits for preparing the case for trial, considering the case in the courts of first and appellate instances for a long time. Within the specified period, the court, by virtue of the relevant norms of the CPC, was obliged to explain to the parties the right to conciliation procedures at all stages of the process. It is assumed that the parties had enough time to discuss possible terms of the agreement. In addition, it takes into account the fact that the parties do not spend time searching for a mediator, concluding an agreement with him to conduct mediation. The suspension of proceedings on a case for ten days during mediation in court is the right of the court.
4. As a rule, the case is transferred to another judge for mediation in the court of first instance. This is consistent with the provisions of the Law "On Mediation" on the confidentiality of information received by the mediator. If mediation is not successful, the case is transferred back to the judge who handled it, and the information or evidence obtained during mediation confirming the depth of the conflict between the parties cannot be transferred by the judge who conducted the mediation to another judge.At the same time, it is stipulated that, at the request of the parties, mediation may be conducted by the judge in charge of the case. This is especially important for small vessels.For mediation in the court of appeal, the case is usually referred to one of the collegial judges of the court and the case is adjourned. When conducting mediation in court by a judge, a professional mediator does not participate, this is a feature of judicial mediation.
5. The judge to whom the case has been referred for mediation shall designate the day of mediation and notify the parties of the time and place of its holding. Mediation in court is conducted in accordance with the Law "On Mediation" and with the specifics established by the CPC. It is possible to hold an on-site meeting, for example, at a children's institution at the location of the child of the disputing parties, if such a visit will contribute to the settlement of the dispute (conflict) between the parties.At the request of the parties, the court has the right to postpone the mediation procedure within the time limit set by part three of this article and to summon other persons for mediation if their participation will contribute to the settlement of the dispute (conflict). These are, for example, cases when it is necessary for relatives to participate in the settlement of a conflict between relatives over inheritance disputes, a psychologist over disputes about children, etc.
6. There is no record of mediation in court, which is consistent with the principle of confidentiality provided for in the Law on Mediation.
7. If an agreement on the settlement of a dispute (conflict) through mediation is concluded at the stage of execution of a judicial act, it is submitted for approval to the court of first instance at the place of execution of the judicial act or to the court that adopted the said judicial act. The right to choose is established in order to create convenience for the parties and apply to the court closest to their place of residence. At the stage of execution, the court must hold a court hearing and, if there are legal grounds and no legal prohibitions, approve the agreement.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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