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EVIDENCE ISSUES ARISING FROM THE USE OF CONCILIATION PROCEDURES

PROBLEMS OF CIVIL PROCEDURE


E.I. NOSYREVA

E.I. NOSYREVA,
Doctor of Legal Sciences,
Professor and Head of the Department of Civil Law and Procedure
of the Voronezh State University

The author explores the evidence issues through the prism of conciliation procedures.
For the purposes of the article the pretrial dispute resolution procedure, negotiations and
mediation are considered as conciliation procedures. Attention is drawn to the fact that
the impact of conciliation procedures on evidentiary activities may be different depending
on whether they are used before going to court or during court proceedings. In relation to
the mandatory pretrial dispute resolution procedure, the problem of proving its compliance
is analyzed. The evidentiary value of the negotiation clause is revealed. Depending on its
content, the independence of the negotiation as an obligatory pretrial procedure is justified.
When applying the mediation procedure, the main issue concerns the need to respect the
principle of confidentiality. Attention is drawn to the shortcomings of the legal regulation
of the issues of admissibility of evidence and mediator’s evidence of immunity. One of the
results of conciliation procedures is a settlement agreement. On the example of judicial
practice, the problem of proving the good faith of the parties in concluding a settlement
agreement is revealed and the existence of the presumption of good faith of the parties in
the court process is substantiated. However, the presumption of good faith of the parties in
concluding a settlement agreement is not intended to redistribute evidentiary obligations
but entails for the parties if the court establishes unfair conduct adverse consequences in
the form of the continuation of the hearing and the adoption of a judicial act. The questions
discussed lead to the conclusion that it is necessary to fully develop the specifics of judicial
evidence when using conciliation procedures.

Keywords: civil procedure; conciliation procedures; pretrial dispute resolution procedure;
negotiation; mediation; proving; admissibility of evidence; witness immunity; confidentiality
principle; presumption of good faith; settlement agreement.

References

Nosyreva E.I., Filchenko D.G. Osnovnye polozheniya kontseptsii ob institute primireniya
storon v grazhdanskom sudoproizvodstve (chast’ vtoraya) [The Main Provisions
of the Concept of the Institution of Reconciliation of the Parties in Civil Proceedings
(Part Two)]. Vestnik grazhdanskogo protsessa = Herald of Civil Procedure, 2015, no. 2.
(In Russian)
Reshetnikova I.V. Prezumptsiya dobrosovestnosti v arbitrazhnom protsesse [Presumption
of Good Faith in Arbitration Procedure]. Zakon = Law, 2017, no. 9. (In Russian)
Streltsova E.G. Peregovory kak dosudebnyj poryadok uregulirovaniya sporov: problemnye
voprosy novykh izmenenij v APK [Negotiations as a Pretrial Dispute Resolution
Procedure: Problematic Issues of New Changes in the Arbitration Procedure Code].
Zakony Rossii: opyt, analiz, praktika = Laws of Russia: Experience, Analysis, Practice,
2016, no. 9. (In Russian)
Zagaynova S.K., Yarkov V.V. (eds.). Kommentarij k Federal’nomu zakonu «Ob
al’ternativnoj protsedure uregulirovaniya sporov s uchastiem posrednika (protsedure mediatsii)
» [Commentary on the Federal Law “On the Alternative Dispute Resolution Procedure
with the Intermediary Participation (Mediation Procedure)”]. Moscow, 2011.
(In Russian)

Information about the author

Nosyreva E.I. (Voronezh, Russia) – Doctor of Legal Sciences, Professor and Head
of the Department of Civil Law and Procedure of the Voronezh State University (10a,
Bldg. 9 Lenin Sq., Voronezh, 394006, Russia; e-mail: civil.law.vsu@mail.ru).

Recommended citation

Nosyreva E.I. Voprosy dokazyvaniya, voznikayushchie v svyazi s ispol’zovaniem
primiritel’nykh protsedur [Evidence Issues Arising from the Use of Conciliation Procedures].
Вестник гражданского процесса = Herald of Civil Procedure, 2019, no. 1,
p. 238–253. (In Russian) DOI: 10.24031/2226-0781-2019-9-1-238-253

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