THE IMPLEMENTATION OF CONCILIATION PROCEDURES IN THE CIVIL PROCESS: THE EXPERIENCE OF RUSSIA AND BRAZIL
Ekaterina Rusakova1*, Evgenia Frolova2, Mikhail Kleandrov3, Ekaterina Kupchina4
1PhD in Law, Associate professor, RUDN University, RUSSIA, rusakova-ep@rudn.ru
2Professor in Law, Institute of Legislation and Comparative Law under the Government of the Russian Federation, RUSSIA, frolevgevg@mail.ru
3Professor in Law, Institute of State and Law, Russian Academy of Sciences, corresponding member of the Russian Academy of Sciences, Mklean@krsf.ru
4Associate professor, RUDN University, RUSSIA, belousova-ev@rudn.ru
*Corresponding Author
Abstract
Currently, the reforms of civil proceedings are taking place everywhere due to the complexity of the procedure, long procedural periods, and high legal costs. The judicial way of protecting the law has recently ceased to satisfy the current trends in dispute resolution, and consequently, the social function of justice has decreased. A lengthy and costly lawsuit deprives the majority of the world's population of the right to judicial protection.
Alternative dispute resolution methods, such as mediation, arbitration, negotiation, and others that have proven to be effective, are widespread. However, in order these methods to be applied in practice, legislative consolidation of these methods is necessary; therefore, at present, conciliation procedures are included in the procedural legislation, and the Russian Federation and the Federative Republic of Brazil are no exception.
The 2016 Brazilian Code of Civil Procedure enshrines conciliation procedures not only as alternative methods but rather as an obligatory stage of civil proceedings. The purpose of such transformations of the civil process is to offload the courts by introducing pre-trial methods of dispute settlement. A new participant, the "judicial mediator," has appeared, who, interacting with the parties, does everything to ensure that the dispute is resolved without judicial proceedings. At each court, centers for reconciliation are created, the purpose of which is to implement the mediation procedure, which makes this method promising.
Since 2018, the "procedural revolution" has been phased in the Russian Federation, which fundamentally changes the trial by introducing conciliation procedures, namely mediation, and the judicial mediator.
This article analyzes and compares civil proceedings in the Russian Federation and Brazil. The conclusions of the study allow us to identify the strengths and weaknesses of the conciliation procedures, as well as the prospects for their implementation in the civil processes.
The goal is achieved by solving several tasks:
- To explore the features of dispute resolution through conciliation procedures in the civil proceedings of the Russian Federation and Brazil;
- To identify the problems of implementing the mediation procedure as a way to resolve disputes in the Russian Federation and Brazil;
- To highlight a new way to resolve disputes through a "judicial mediator" in the Russian Federation and Brazil.
The research methodology is based on both qualitative and quantitative analysis, as well as on the method of empirical experiment. The study of civil procedural legislation, as well as some national sources and other normative acts, was carried out using specific research methods, logical, statistical, and content analysis. During the study, the authors relied on the results of research by Russian and foreign law theorists in the considered and related fields of knowledge.
The results of the study can be used to determine key goals and objectives of a procedural nature, improve the functioning of judicial and extrajudicial institutions, law enforcement, research activities, as well as in educational and teaching activities, in particular, during lectures and seminars on courses of civil procedure, arbitration process, and private international law.
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