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EVIDENCE ISSUES ARISING FROM THE USE OF CONCILIATION PROCEDURES

EVIDENCE ISSUES ARISING FROM THE USE

OF CONCILIATION PROCEDURES

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: [email protected]).

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

E.I. NOSYREVA