Conciliation as a new tool for resolving disputes

Pepeliaev Group highlights the significantly expanded range of possibilities for resolving commercial disputes and litigation arising out of civil law and other legal relationships by means of a new type of service – conciliation involving an intermediary, which includes:

• expert determination;

• facilitated negotiation or facilitation;

• mini-trial;

• mediation;

• court mediation.

Conciliation procedures are significantly less costly than litigation, since as a general rule the costs are spread equally among the parties. Moreover, there is no need for expenses to be incurred on having a dispute heard before courts at several levels. 

Disputes are resolved more quickly and at times which suit the parties’ representatives.

The parties may choose the most acceptable conciliation procedure.

The parties themselves set the procedural rules for settling a dispute, agreeing them with the intermediary. 

In contrast to public court proceedings, conciliation procedures are confidential, and all information received by an intermediary during such proceedings is not disclosed even in court.

An agreement entered into with the help of an intermediary has contractual force and binds the parties. The court may also approve an agreement as a settlement agreement should court or commercial (‘arbitration’) court proceedings in the case already have begun. 

In contrast to a court decision, which only covers the range of matters set by the law, an agreement reached further to a conciliation procedure may provide for a much greater number of problems to be resolved.

Conciliation procedures may be applied if a dispute arises between Pepeliaev Group clients when there is a conflict of interests.

Pepeliaev Group has devised Rules for conciliation having regard to the provisions of Federal Law No. 193-FZ ‘On an alternative dispute resolution procedure using an intermediary (mediation procedure)’, the Russian Arbitration Procedure Code, the Russian Civil Procedure Code and the United Nations Model Law on International Commercial Conciliation adopted in New York on 24 June 2002 at the 35th session of UNCITRAL.

The text of the Rules is available on Pepeliaev Group’s website at: http://www.pgplaw.ru/.

Expert determination as a conciliation procedure involves the intermediary preparing a written opinion which contains a legal analysis of the situation and of the risk of adverse consequences for the parties (including court risks), as well as offering recommendations for possible ways of resolving the matters in dispute. The opinion is prepared based on documents and information supplied by the parties to the dispute, including during their initial contact with the intermediary, with the exception of documents and information which a party directly indicates to the intermediary may not be disclosed to another party.

Facilitated negotiation involves a conciliation procedure in which an intermediary, based on a prior study of documents and information provided by the parties, assists them to settle the dispute amicably. At the same time the intermediary acts as an expert and may, if the parties request, propose to them specific ways to resolve the dispute, including by coming up with a written agreement (contract). 

A mini-trial is a settlement procedure in which the parties, assisted by an intermediary, first exchange written opinions, documents and information relating to the situation. Then the authorised representatives of each party, in the mediator’s presence, attempt to reach an agreement in relation to the dispute, setting out the relevant circumstances and the way they see matters. If the parties fail to reach agreement, the intermediary will provide an opinion in writing regarding the likely outcome of the case should it be referred to court.

Mediation – a conciliation procedure taking the form of negotiations arranged by a mediator or intermediary who manages the negotiating process to help the parties settle their dispute by reaching a mediated agreement that serves the interests of both parties. In doing this, the mediator does not propose to the parties ways to solve their dispute; instead, he or she assists the parties to reach an agreement which is to their advantage. If necessary, the mediator recommends that the parties have recourse to professional advisers with the appropriate expertise.

The way Pepeliaev Group’s lawyers have developed the practice area of providing conciliation procedures shows how effective their services are.

In view of this, when there is a potential dispute or prospective litigation, we recommend that the parties use conciliation. 

Pepeliaev Group’s professionals are ready to provide highly qualified legal assistance in assessing whether there is the potential to resolve a dispute using conciliation as well as in selecting the most effective procedure in the circumstances at hand, assisting in a mutually satisfactory workable agreement being reached, and helping business partners to maintain and develop their relationship. 

in Moscow – Yuri Vorobyev, Head of Dispute Resolution and Mediation Practice, at (495) 967-0007 or by y.vorobyev@pgplaw.ru

Yulia Litovtseva, Head of Dispute Resolution and Mediation Practice Group, at (495) 967-00-07 or by y.litovtseva@pgplaw.ru