The Role of Court and Attorney in Judicial Conciliation

AutorVigita Vėbraitė
CargoCadidate (PhD) em Vilnius University, Lithuania, Department of civil law and civil procedure
Páginas122-137

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The author concludes that the court shall be an active upholder of conciliation from the very start of the preparation for hearing the case. It is very important that in Lithuania according the First Paragraph of Article 228 of the Code of Civil Procedure the court, believing that a case may be closed in a peaceful settlement or when the law obliges the court to take measures to conciliate the parties, shall assign a preliminary court session. The author stresses that the duty of the court to encourage the parties to settle the dispute peacefully and take actions that the peace settlement was concluded certainly should not end with the preliminary court session.

In Lithuania the Code of Civil Procedure does not set what specific measures the court shall take in order to achieve a peaceful settlement between the parties. The First Paragraph of Article 231 of the Code of Civil Procedure provides that the court after the essence of the dispute is identified shall offer both parties to come to a mutually acceptable compromise agreement and to close the case in a peaceful settlement as well as to take measures to conciliate the parties. The author thinks that such legal regulation should be assessed as positive as the court, taking intoPage 123 account a concrete situation, on its own discretion may undertake certain measures to conciliate the parties.

The attorneys should also be very active in judicial conciliation. The attorney himself shall also prepare for the judicial conciliation, think over possible suggestions, what compromises may be offered to the other party if peaceful settlement was achieved in the court.

The Role of Court. According to the Constitution of the Republic of Lithuania a court is an independent State institution which administers the justice and obeys only the law. An opinion that the court shall heed that the hearing of a case is carried out according the legal norms and the decision adopted is lawful and reasonable was followed for a long while. Usually conciliation of the parties was left to the discretion of the parties themselves and the court was not under duty to undertake measures to conciliate them. Nowadays the situation has changed considerably and the role of court in conciliation of parties is being discussed increasingly both in certain countries and at international level. For example, First European Conference of Judges in the year 2003 was dedicated to early settlement of disputes and the role of judges1. It was noted in the conclusions of the conference that states and judges themselves shall not only undertake measures in order to settle the disputes as quickly and as facile as possible but also shall promote peaceful settlement of a dispute in both cases at the court and before a claim is submitted to the court. Judges shall be competent at techniques of alternative procedures for settlement of disputes.

In Lithuania until the new Code of Civil Procedure came into force only a right of a very general nature to offer the court to conclude a peace treaty existed. Presently, the situation has changed and the First Paragraph of Article 159 of currently effective Code of Civil Procedure provides the duty of the chairman of a session to take conciliation measures. As Article 159 is titled “Duty of the chairman of a court session to ensure proper hearing”, the duty of conciliation should be approached as a constituent part of the duty of the chairman of the court session to ensure properPage 124 hearing. This legal regulation confirms that the court these days shall be active not only while determining substantial law but also while taking conciliation measures. Accordingly, it remains to answer a question how the court shall behave and what measures should be taken that a peace settlement between the parties be concluded.

In our opinion, the court shall be an active upholder of conciliation from the very start of the preparation for hearing the case. As the claim is accepted, attention should be paid if the nature of a case allows the parties to conclude a peace treaty. If the case does not involve the issues when it is not possible to conclude a peace treaty (legal status of persons or capacity, issues regulated by imperative legal norms, as well as issues related to public order), the court while sending the claim to defendant and third persons may not only provide a time limit for the defendant to submit an answer to the statements of the claim but also indicate that the parties may close the case peacefully. The plaintiff could be informed about the possibility of conciliation together with a ruling on an assignment of a preliminary court session or that the preparation for the court hearing will be proceeded within the form of preliminary documents. In our opinion, the possibility of this kind of notification is determined by the duty of the court established by Article 159 of the Code of Civil Procedure and can be applied despite the fact that forms of summons and notices adopted by the Minister of the Justice are not customized to talk about the procedure of conciliation. Actions available to the court in pursue of notifying the parties about the option of peaceful settlement at the very start of the preparation for the court hearing should be approached positively as the parties in advance gain a possibility to find out that eventually they are able to conclude a peace treaty, especially in the cases when parties or a party are not represented by an attorney2.

The court having received the answers of the defendant and third persons shall always consider extra closely what method of preparation for the court hearing to choose: either written proceedings where the parties swap the preliminary documents or verbal when preliminary court session is assigned. While deciding on these issues, the court shall always bear in mind if in a certain case it is possible toPage 125 conclude a peace treaty, as according the First Paragraph of Article 228 of the Code of Civil Procedure the court, believing that a case may be closed in a peaceful settlement or when the law obliges the court to take measures to conciliate the parties, shall assign a preliminary court session. It is of crucial importance to consider if it is possible to end the dispute peacefully in the case when both parties are represented by attorneys or their assistants since the First Paragraph of Article 227 of the Code of Civil Procedure establishes that if the parties are represented by aforementioned persons and there is no possibility to conclude a peace treaty, preparation for the court hearing shall be assigned in the form of preliminary documents.

Naturally, in Lithuania the parties are not obliged to indicate in their procedural documents if they tried to settle the dispute peacefully before applying to the court or if they see an opportunity to come to a settlement themselves. Therefore, the court having regard to the nature of the case on its own discretion and on a case by case basis shall decide if to carry on the preparation for the court hearing at the preliminary court session where conciliation procedure is a constituent part or in the form of written proceedings. Factors which sometimes reveal that conciliation procedure could hardly help to conciliate the parties are the following: an exceptional disagreement between the parties apparent from a claim and answer to the statements of the claim; dependence of the dispute resolution on examination or expressed objection of the parties to conciliation.3 However, every single case is unique, therefore, in our opinion, while deciding if to assign a preliminary court session, the most important fact is to have a regard to the essence of the dispute, already known facts in particular case. For example, in the cases where securing economical and social relation should be of crucial importance to the parties (disputes between neighbours, old business partners, etc.) it is necessary for the court to make an attempt to conciliate the parties. It is essential to note that a preliminary court session should always be assigned in the cases considering family or labour legal relations; therefore, conciliation procedure is also compulsory in these cases.

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If the court decides that the preparation for the court hearing will be proceeded within the preliminary court session, it shall consider closely the possibility to call parties and third persons to participate in the hearing personally. While deciding on this issue, the court shall take into account if representatives of the parties and third persons have relevant powers to conclude a peace treaty as well as the essence of the dispute. It is evident that, for example, in the cases where plaintiff or defendant is a big enterprise it is not realistic to grant the director of the enterprise an audience in each case. Many a time, a well experienced judge knows attorneys well and notices which of them are sceptical in regard of conciliation4. In our opinion, in these cases the court should consider if it is not worthy to call the parties to participate at the hearing personally.

When the preliminary court session is assigned, it is important to discuss what role the court takes in the procedure of conciliation. In Lithuania the Code of Civil Procedure does not set what specific measures the court shall take in order to achieve a peaceful settlement between the parties. The First Paragraph of Article 231 of the Code of Civil Procedure provides that the...

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