The implementation of consensual tenet in modern civil procedure: comparative analysis of court-connected settlement procedures applied in Austria, Lithuania, and Ukraine

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The implementation of consensual tenet in modern civil procedure: comparative analysis of court-connected settlement procedures applied in Austria, Lithuania, and Ukraine

Tetiana Tsuvina*, Sascha Ferz, Agne Tvaronaviciene and Paula Riener

Abstract

Background: In this article, the co-authors continue exploring the observable changes in the orientation of civil procedure, moving from competitive and adversarial models towards more cooperative and consensual approaches. Specifically, this work aims to disclose the peculiarities of practically implementing the principles of mutual cooperation and consensuality in civil procedure.

The research delves into court-connected settlement procedures in three European countries: Austria, Lithuania, and Ukraine. Through a comparative analysis of the legal regulations and practices in the selected countries, the article evaluates the impact of the application of settlement- oriented procedures on fostering a more amicable resolution of civil disputes.

Methods: Research commenced with a review of the existing scientific literature, a brief historical analysis, and a document analysis concerning the legal framework of settlement- oriented procedures applied in the civil process in selected countries.

This work is the continuation of the previous research of the co-authors, aiming to explore how the identified global trend of the drift towards a consensual tenet in the civil procedure was reflected in the selected countries' legal legislation and practice.

The Austrian, Lithuanian, and Ukrainian legal frameworks of court-connected settlement-oriented procedures were compared to acknowledge the existing variety and specifics of national approaches towards consensuality in the civil procedure in different jurisdictions.

Results and Conclusions: The ideas of a more socially oriented and consensual civil procedure are implemented in the civil procedure of Austria, Lithuania, and Ukraine through the introduction of settlement-oriented methods of dispute resolution, such as court conciliation and court mediation. Despite the wide common understanding of these amicable procedures, essential differences in the theoretical understanding of the concept and its implementation in the analysed jurisdiction were identified. This research assists dispute resolution practitioners and researchers interested in better understanding the implementation of court-connected settlement-oriented procedures in different jurisdictions.

Аннотация

Реализация принципа консенсуальности в современном гражданском процессе: сравнительный анализ судебных процедур урегулирования споров, применяемых в Австрии, Литве и Украине

Справочная информация: В этой статье соавторы продолжают исследовать наблюдаемые изменения в ориентации гражданского судопроизводства, переходя от конкурентных и состязательных моделей к подходам, основанным на сотрудничестве и согласии. В частности, цель данной работы - раскрыть особенности практической реализации принципов взаимного сотрудничества и консенсуальности в гражданском процессе. Исследование посвящено судебным процедурам урегулирования споров в трех европейских странах: Австрии, Литве и Украине. На основе сравнительного анализа правовых норм и практики в выбранных странах в статье оценивается влияние применения процедур, ориентированных на урегулирование споров, на содействие более мирному разрешению гражданских споров.

Методы: Исследование началось с обзора существующей научной литературы, краткого исторического анализа и анализа документов, касающихся правовых рамок процедур, ориентированных на урегулирование споров, применяемых в гражданском процессе в выбранных странах. Данная работа является продолжением предыдущего исследования соавторов, направленного на изучение того, как выявленная глобальная тенденция перехода к консенсусному принципу в гражданском процессе отразилась в законодательстве и практике отдельных стран. Было проведено сравнение австрийской, литовской и украинской правовых систем, регулирующих связанные с судопроизводством процедуры урегулирования споров, с целью признания существующего разнообразия и специфики национальных подходов к обеспечению консенсуса в гражданском процессе в различных юрисдикциях.

Результаты и выводы: Идеи более социально ориентированного и основанного на консенсусе гражданского судопроизводства реализуются в гражданском процессе Австрии, Литвы и Украины посредством внедрения методов урегулирования споров, ориентированных на урегулирование споров, таких как судебное примирение и судебная медиация. Несмотря на широкое распространенное понимание этих мировых процедур, были выявлены существенные различия в теоретическом понимании концепции и ее реализации в анализируемой юрисдикции. Это исследование помогает практикам в области разрешения споров и исследователям, заинтересованным в лучшем понимании реализации связанных с судопроизводством процедур урегулирования споров в различных юрисдикциях.

Introduction

Amicable dispute resolution has become a trend in civil procedure in the last two decades.

The classical understanding of competition-based dispute resolution in courts is changing rapidly toward a modern approach, including settlement-oriented options for the disputants. In most countries, the modernisation of civil procedure brought into practice the legal framework of such settlement procedures as in-court conciliation, in-court and court-connected mediation, and amicable conciliation processes.

Thus, `all over the world, “court-connected” programs and their mediation and conciliation elements differ'.¹ This leads to the need for a deeper look into the national legal framework and practice of selected countries to acknowledge the existing variety and specifics of national approaches towards consensuality in the civil procedure in different jurisdictions.

This research focuses on court-connected settlement procedures applied in civil process, where the implementation of principles involving mutual cooperation and consensuality is paramount.

This small-scale study aims to disclose the peculiarities and specifics of implementing the social civil process ideas regarding court assistance in consensual settlement. The selected countries for examination are Austria, Lithuania, and Ukraine. The study seeks to unravel how settlement-oriented court-connected procedures operate in these countries, exploring their peculiarities, similarities, and differences.

The deliberate choice to focus on Austria, Lithuania, and Ukraine is influenced by the significant impact of famous Austrian lawyer F. Klein, the father of the concept of the social civil procedure. His ideas not only served as a base for the Austrian civil procedure but also influenced the legal doctrine and legislation of other European countries considerably. Lithuania, in particular, exemplifies this influence through its modern civil procedure.

By grounding its modern Code of Civil Procedure in the ideas of F. Klein's doctrine on Social Civil procedure, the Lithuanian legislator sought to reassess the role of the court in the process, to give it not solely the role of a completely passive arbiter, but rather the role of a certain defender of public interests. Tetiana Tsuvina, Sascha Ferz, Agne Tvaronaviciene and Paula Riener, `The Implementation of Consensual Tenet in Modern Civil Procedure: A European Approach of Court-Related Amicable Dispute Resolution Procedures' (2023) 6(1) Access to Justice in Eastern Europe 221, doi:10.33327/AJEE-18-6.1-a000124. Virgilijus Valancius, `Lietuvos civilinio proceso kodeksas: pirm^j^ mety patirtis' (2005) 69(61) Jurisprudencija 55. The Lithuanian Code of Civil Procedure aimed to achieve a reasonable combination of securing the interests of society and the state on the one hand and the interests of private individuals on the other. Vigita Vebraite, `Sali^ sutaikymas civiliniame procese' (DPhil thesis, Vilnius University 2009) 35. So, the Austrian school of social civil procedure had a significant impact on Lithuanian civil procedure.

Nevertheless, current changes in Lithuanian civil procedure law concerning the wider promotion of court mediation and applications of mediation as a mandatory pre-litigation procedure in family disputes show that this country is active in further development of socially oriented civil procedure and applies measures that go beyond the experience and practice of its predecessors.

The third country chosen for the comparison is Ukraine, a country rapidly advancing in the legal field, characterised by its ability to effectively adopt successful foreign practices and properly incorporate them into its national law, thereby creating prerequisites for the effective application of legal innovations. However, the ongoing Europeanisation process of this country also poses several challenges.

The desire to enjoy a modern civil process often falters when faced with difficulties in implementing innovations. It is recognised that some socially useful initiatives focused on creating public welfare do not always receive support from the public and legal system entities. This applies to the settlement procedure with the participation of a judge, which is used not very often in practice. Such a comparison illustrates how the changes in civil procedure paradigm reflect the practice, focusing on the implementation of court conciliation and mediation consepts. It underscores the variety of possible directions of social civil process development, which grounds that every national system should constantly search, responsibly choose, and effectively implement the measures for assistance in settling.

Theoretical background changes in perception of adr: the shift from the alternative to litigation towards becoming an integral part of the modern civil procedure

Although alternative dispute resolution (further - ADR) is a well-known and globally used concept, recently its interpretation as an `alternative' to litigation has been criticised in literature. Masood Ahmed, 'Moving on from a Judicial Preference for Mediation to Embed Appropriate Dispute Resolution' (2019) 70(3) Northern Ireland Legal Quarterly 331, doi:10.53386/nilq.v70i3.137; Laurence Boulle and Rachael Field, Australian Dispute Resolution: Law and Practice (LexisNexis Butterworths 2016) 36-7. Some scholars have proposed alternative terms such as `appropriate, Ahmed (n 4); Mariana Hernandez-Crespo Gonstea, `Remedy without Diagnosis: How to Optimize Results by Leveraging the Appropriate Dispute Resolution and Shared Decision-Making Process' (2020) 88(6) Fordham Law Review 2165; Dorothy W Nelson, `Which Way to True Justice?: Appropriate Dispute Resolution (ADR) and Adversarial Legalism' (2004) 83(1) Nebraska Law Review 167. `amicable' Adriana Deac, `General Terms of the Amicable Settlement of Disputes Between Consumers and Traders' (2015) 4(1) Perspectives of Business Law Journal 88; Sascha Ferz, `Amicable Dispute Resolution at Court: Conciliation Hearings, The Austrian and German Perspectives' (2022) 8(1) International Comparative Jurisprudence 106, doi:10.13165/j.icj.2022.06.008; Tsuvina and others (n 1) 221. or `additional' John Doyle, `Diminished Responsibility? The Changing Role of the State' (1997) 2(1) Flinders Journal of Law Reform 33; Mavis Maclean, `Family Mediation: Alternative or Additional Dispute Resolution?' (2010) 32(2) The Journal of Social Welfare & Family Law 105, doi:10.1080/09649069.2010.506306. dispute resolution rather than `alternative'. In some sources, we can even find the proposition to replace ADR with EDR, i.e. `effective dispute resolution'. William L Ury, Jeanne M Brett and Stephen B Goldberg, `Designing an Effective Dispute Resolution System' (1988) 4(4) Negotiation Journal 413, doi:10.1111/j.1571-9979.1988.tb00484.x. This pluralism of views reflects the diversity of dispute resolution areas, emphasising only one essential feature of a particular group of dispute resolution methods in the abovementioned terms. For example, `alternative' underscores the distinctions between ADR and classical litigation, `amicable' accentuates the conciliatory tenet of such procedures, and `appropriate' highlights the procedures which best suit a particular type of case and parties, etc.

For many years, legal discourse on ADR was built around the dichotomy of ADR versus litigation. In such a paradigm, the court was typically introduced as a not-so- effective type of dispute resolution, i.e. more costly, timely, and burdened with formalities than ADR. Adrian Zuckerman, `Justice in Crisis: Comparative Dimensions of Civil Justice' in A Zukerman (ed), Civil Justice in Crisis: Comparative Perspectives of Civil Procedure (OUP 1999) 2, doi: 10.1093/ acprof:oso/9780198298335.003.0001. This perspective embedded scepticism about ADR among lawyers educated in the adversarial system of civil litigation. Simultaneously, it could foster a false expectation of ADR as a panacea of dispute resolution area. Nevertheless, we do not follow this antagonistic view.

It seems that a more productive way of introducing a dispute resolution system is a procedural pluralism, Marc Galanter, `Justice in Many Rooms: Courts, Private Ordering and Indigenous Law' (1981) 13(19) Journal of Legal Pluralism 1, doi:10.1080/07329113.1981.10756257. <sup>ibid 2.</sup> which provokes us to interpret different ADR procedures, often considered `in the shadow of the law', as equal forums for resolving disputes.¹¹ This approach suggests introducing different dispute resolution methods as parts of one dispute resolution system (DRS). Boulle and Field (n 4) 33; Shauhin A Talesh, `How Dispute Resolution System Design Matters: An Organizational Analysis of Dispute Resolution Structures and Consumer Lemon Laws' (2012) 46(3) Law and Society Review 463, doi:10.1111/j.1540-5893.2012.00503.x; Ury, Brett and Goldberg (n 8). This means `the use of the word `alternative' as a description for DR has long been inaccurate'. Boulle and Field (n 4) 38. Such a system was introduced in literature in different ways - as `spectrum' or `matrix'. Boulle and Field (n 4) 40-2; Jean-Marie Kamatali, `Transplanting an ADR-Centric Model of Dispute Resolution from the Anglo-American Legal System to the Civil Law System: Challenges, Limitations, and Proposals' (2022) 37(3) Ohio State Journal on Dispute Resolution 316. In general, it covers negotiation, mediation, conciliation, arbitration, and litigation. However, such a spectrum can vary according to the national peculiarities of the DR in different countries. Boulle and Field (n 4) 41.

One of the key points is that in the procedural pluralism paradigm, courts also can be seen as multifunctional `arenas in which various kinds of dispute [...] processing take place', Galanter (n 10) 3. (including negotiation, mediation, conciliation, etc.). It means the court is seen as a forum for other DR methods by integrating them into the litigation. Such interaction between classical litigation and other DR methods can be seen, for example, in practices of mandatory mediation, which is highly discussed now, Dorcas Quek Anderson, `Mandatory Mediation: An Oxymoron - Examining the Feasibility of Implementing a Court-Mandated Mediation Program' (2010) 11(2) Cardozo Journal of Conflict Resolution 479; CH van Rhee, `Mandatory Mediation before Litigation in Civil and Commercial Matters: A European Perspective' (2021) 4(4) Access to Justice in Eastern Europe 7, doi:10.33327/ AJEE-18-4.4-a000082. when mediation becomes the prerequisite of the trial, as well as in the current practice of in-court or court-related mediation. The more sophisticated view of courts as providers of complex DR systems was already introduced by F. Sander in his `multi-door courthouse' concept years ago. Frank EA Sander, `Varieties of Dispute Processing' (The Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, St Paul, Minn, 7-9 April 1976) 111.

As we can see, DR design is considered a set of measures to construct an effective DR system. In this context, the state becomes one of the stakeholders of such a system due to its vested interest in the efficacy of all justice sectors. This is supported by the increasing value of the consensual tenet in civil procedure seen in the civil procedural codes of many European countries and from the pan-European perspective. Tsuvina and others (n 1) 204-10. For example, ELI/UNIDROIT Model European Rules of Civil Procedure (ELI/UNIDROIT Rules) recognise the settlement principle as a prominent principle of modern civil procedure. According to this principle, parties, their lawyers, and judges are encouraged to cooperate in seeking the parties' consensual dispute resolution during a trial. This includes using amicable dispute resolution methods. European Law Institute (ELI) and International Institute for the Unification of Private Law (UNIDROIT), ELI/UNIDROIT Model European Rules of Civil Procedure: From Transnational Principles to European Rules of Civil Procedure (OUP 2021).

Current trends in emerging dispute resolution mechanisms underscore the growing importance of settlement-oriented procedures. For example, the Civil Resolution Tribunal (CRT) in British Columbia (Canada) in 2016 marked a pivotal development as the first online court for most small claims categories, including those up to CAD 5,000, personal injury disputes arising from road traffic accidents, and condominium disputes. See: Civil Resolution Tribunal <https://civilresolutionbc.ca> accessed 20 June 2023. The idea of this online court as a complex DR system is to provide dispute settlement at the earliest stage and only resort to a trial if it fails. This DR system consists of four blocks: 1) providing legal information on the dispute through the information platform `Solution Explorer'; ibid, `Solution Explorer'. 2) negotiations, when the parties use the online negotiation procedure to resolve the dispute by themselves; 3) facilitation, which is applied if the negotiations are unsuccessful and presupposes the active assistance of a third neutral party (usually a professional mediator); 4) court proceedings, as ultima ratio method. Orna Rabinovich-Einy and Ethan Katsh, `The New New Courts' (2017) 67(1) American University Law Review 190-1; Shannon Salter and Darin Thompson, `Public-Centered Civil Justice Redesign: A Case Study of the British Columbia Civil Resolution Tribunal' (2016-2017) 3 McGill Journal of Dispute Resolution 113; Shannon Salter, `Online Dispute Resolution and Justice System Integration: British Columbia's Civil Resolution Tribunal' (2017) 34(1) Windsor Yearbook of Access to Justice 120-1, doi:10.22329/wyaj.v34i1.5008; Amy J Schmitz, `Expanding Access to Remedies through E-Court Initiatives' (2019) 67(1) Buffalo Law Review 126-30; Vivi Tan, `Online Dispute Resolution for Small Civil Claims in Victoria: A New Paradigm in Civil Justice' (2019) 24(1) Deakin Law Review 116-8, doi:10.21153/dlr2019vol24no1art873. Settlement-oriented procedures have also been integrated into innovative online dispute resolution systems recently introduced in Australia (New South Wales and Victoria) Tan (n 23) 122-8. and the United Kingdom. Online Dispute Resolution Advisory Group, Online Dispute Resolution for Low Value Civil Claims (Civil Justice Council 2015) 6-7.

In this context, it is especially important to recognise that these court practices contribute to shaping an image of a new court and justice in civil cases, affecting the understanding of the international standard of access to justice. DR design of such courts is built on the model `dispute avoidance - dispute containment - dispute resolution': a) dispute avoidance, which corresponds to the first informational stage; b) dispute containment, which is the focus of the second, facilitative stage, during which the parties try to resolve the dispute through direct negotiations or consensual procedures involving a third neutral party, in particular, mediation, conciliation, etc.; c) dispute resolution, which takes place in an adversarial form of proceedings. ibid 17-8. Of significance is that the accent of this system should be on the first two stages, which make sense from the perspective of conflict management.

Integrating different DR methods into formal justice indicates the hybridisation of formal and informal justice processes. It creates a new architecture of the civil DR system based on several fundamental provisions. Firstly, the consensual tenet of civil procedure should be at the heart of the civil procedure and the DR system. This approach allows for a dispute settlement at the earliest stages because negotiations, mediation, and other conciliation procedures are built into the DR system. Secondly, such a system is designed to be user-friendly, placing the disputing parties, their interests, and convenience at the centre of the DR system. Thirdly, DR systems in court are more effective for the state as they can save state resources by orienting the parties towards resolving disputes as early as possible. Fourthly, using such systems is also more effective for the involved parties. It is cost-effective, allowing parties the possibility to represent their interests independently in the early stages without a professional representative, thereby avoiding unnecessary expenditure of time and money on a timely litigation process. Crucially, this approach ensures equal access to justice for all in an attempt to ensure `win-win' outcomes for the parties.

To sum up, many ADR methods recently became an integral part of modern civil procedure and cannot be titled as a contradiction for litigation anymore. Diverse legal frameworks and practices of different countries have already proved that hybridisation of the DR has great potential to build a more collaborative and disputants' interests-oriented process, which also serves as a means to manage the courts' workload and foster access to justice.

The court-connected settlement procedures, applied in Austria, Lithuania, and Ukraine

With some minor exceptions, Austrian, Lithuanian, and Ukrainian civil procedure legislation envisage the possibility of the parties ending court proceedings by reaching an agreement in most civil cases. How does the court support and foster settlements during the civil procedure in these three states? What types of court-connected settlement-oriented procedures are applied in these countries? These questions will be answered in the following based on an analysis of national legal regulations and practices in the selected countries.

Court-Connected Settlement Procedures in Austria

Origins of the Settlement-Oriented Legal Regulation in Austrian Civil Justice. The history of civil procedure in Austria can be traced back to the ideas of F. Klein, known as `the intellectual father of the Austrian Code of Civil Procedure' (Austrian CCP). Walter H Rechberger und Daphne-Ariane Simotta, Grundriss des Osterreichischen Zivilprozessrechts: Erkenntnisverfahren (9 Aufl, MANZ Verlag 2017) 3. In 1890/91, Klein spearheaded a comprehensive reform with the publication of his series of essays titled `Pro Futuro,' Franz Klein, Pro futuro: Betrachtungen tiber Probleme der Civilprocefireform in Oesterreich (Deuticke 1891). ultimately leading to a reform of the Austrian Code of Civil Procedure of 1895. This code remains the primary legal source for civil procedure today, replacing the relevant provisions of the General Court Rules of 1781. Peter G Mayr, `Das streitige Verfahren (Zivilprozessrecht)' in H Barta (hrsg), Zivilprozessrecht (WUV Universitatsverlag 2004) 1081.

Several theories in Austrian jurisprudential literature formulate the purpose and essence of civil litigation. Known theories are, for example, the liberalist litigation purpose theory, The civil process as an institution for the enforcement of individual interests. Hans Walter Fasching, Lehrbuch des osterreichischen Zivilprozessrechts: Lehr- und Handbuch ftir Studium und Praxis (MANZ Verlag 1990) 35. the purely ideological litigation purpose theory of Marxism and National Socialism, ibid 35-6. The purpose of civil proceedings is to implement the law for socialist legality or the people's community, thus putting individual protection aside. the theory of the legal peace purpose, ibid 36. The focus is on legal peace. sociological litigation purpose theories E.g. the civil process as a role play to reduce antagonisms and to legitimize decisions. as well as the theory of F. Klein, which will be discussed in more detail below. In each case, the individual theories are to be viewed only in the light of `the historical background of the respective state, the specific applicable procedural law of the country, the litigation theorists themselves, and often only as a reaction to other litigation purpose theories.' Fasching (n 30) 35-6.

F. Klein's work assumed that civil proceedings, as an institute of public law, should not serve the interests of private individuals alone. Instead, they should be regarded as a burden on society as a whole - a social evil that impairs the economic cycle. They, therefore, must be eliminated as simply, quickly, and inexpensively as possible. Georg E Kodek und Peter G Mayr, Zivilprozessrecht (5 Aufl, Facultas 2021) 34; Mayr (n 29) 1081; Martin Trenker, Einvernehmliche Parteidisposition im Zivilprozess: Parteiautonomie im streitigen Erkenntnisverfahren (MANZ Verlag 2020) 64-5. At the same time, the establishment of truth should in no way be neglected. Oskar J Ballon, Einftihrung in das osterreichische Zivilprozessrecht: Streitiges Verfahren (12 Aufl, Leykam Buchverlagsgesellschaft 2009) 20-1. Accordingly, law enforcement is to be considered a community interest. To this end, judges strive to ensure the correctness and, above all, the comprehensibility of decisions. Moreover, they aim to terminate the proceedings economically and with minimal consequences to end the legal dispute. Kodek and Mayr (n 35) 46; Fasching (n 30) 36-8. In this sense, the civil process represents a state welfare institution with the judge as the `professional representative of the common interest.' Ballon (n 36) 20-1; Mayr (n 29) 1081. This approach by F. Klein led to the idea of social civil procedure. Ballon (n 36) 20-1. According to this, civil proceedings should not only be understood as a means of enforcing individual interests but should rather ensure individuals' peaceful and orderly coexistence in a society. Alexander Meisinger, System der Konfliktbereinigung: Alternative, komplementare und angemessene Streitbeilegung (MANZ Verlag 2021) 1. Klein thus created the first process model, in which the protection of the individual and the community interest is balanced excellently. Rechberger and Simotta (n 27) 9-10.

Today, the idea developed by F. Klein concerning social civil procedure is deeply anchored in Austrian jurisprudence. On the one hand, this was done by means of legislation through the drafting of corresponding norms. Meisinger (n 40) 1. Examples of this are the obligation of completeness in party submissions, the power of judges to conduct proceedings, the short time limits, and the prohibition of novelty in appellate proceedings. Ballon (n 36) 21. On the other hand, social civil procedure was also pursued through the interpretation of jurisdiction and the application of case law to actual individual cases. Meisinger (n 40) 1. Civil proceedings are thus also intended to resolve private conflicts to establish orderly coexistence and a functioning social system. If the causes of the conflicts behind the legal disputes are not eliminated, the following legal action is probably already on the way. The civil process should, therefore, also give the disputing parties the opportunity for rational dialogue to bring about an amicable settlement of the conflict if possible. To this end, the legislator forced several possibilities in the Austrian private law system. Kodek and Mayr (n 35) 34-5.

According to H.W. Fasching, the purpose of civil procedure in the modern welfare state of the present can be classified as follows: civil proceedings must protect and guarantee the private legal order of the state legal community by establishing lasting legal peace through which the justified private legal claims of each individual are taken into account and realised as quickly and inexpensively as possible with the fully responsible participation of those affected. The formulation of such litigation purpose has implications for the CCP, and the degree to which it conforms to these determines how adept and effective it is. Consequences, according to Fasching's litigation purpose, are the institutional safeguarding of legal certainty and legal peace, Code of Civil Procedure of Austria `Zivilprozessordnung - ZPO' (as amended of 2023, current version) art 501 para 1 <https://ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen& Gesetzesnummer=10001699> accessed 20 June 2023. access to justice for everyone, ensuring uniform application of the law for similar cases, providing clear, quick, cheap, and understandable procedures, and the responsible participation of parties by guaranteeing the right to be heard and protecting individual privacy. Fasching (n 30) 36-8.

Court Conciliation. In the case of Austria, the possibility of amicable dispute resolution is not directly enshrined in law but is, nevertheless, provided for as one of the leading principles of civil procedure. The procedural principles are guidelines from which the Austrian CCP proceeds in structuring the proceedings. Only rarely are they explicitly mentioned in the law. One of these procedural principles pursues promoting an amicable dispute resolution. An appropriate example of this principle can be found in the provisions on court settlement (Art. 204 Austrian CCP) regarding suitable institutions for out-of-court conflict resolution, in particular, mediation. Kodek and Mayr (n 35) 64, 65, 73. Thus, in civil cases, where settlement is possible, judges may encourage parties to a dispute to settle in several ways. Article 204 of the Austrian CCP proclaims that:

`1. At the oral hearing, the court may, in any situation of the case, on the application or of its own motion, attempt an amicable settlement of the legal dispute or bring about a compromise on individual points in dispute. In this context, reference shall also be made, if this appears expedient, to institutions that are suitable for the amicable settlement of conflicts. If a settlement is reached, its content shall be recorded in the minutes of the hearing upon request.

2. For the purpose of attempting or recording a settlement, the parties may, if they agree, be referred to a commissioned or requested judge....' Code of Civil Procedure of Austria (n 46) art 204.

On the one hand, this legal provision implies classical court conciliation, which is an integral part of the civil procedure and may be applied in all cases and committed by the trial judge. Accordingly, the trial judge may bring an amicable dispute settlement in the form of a judicial settlement. This settlement is considered a procedural contract and must be drawn up in the form of a court record. Jdrgen Schmidt, `Bestehende und neue Formen der Konfliktlosung' in A Deixler-Hdbner und M Schauer (hrsg), Alternative Formen der Konfliktbereinigung: ADR, Richtlinie, Schlichungswesen, Mediation & Einigungsverfahren (MANZ Verlag 2016) 183-4. The record may be prepared by the trial judge, a requested judge or a bailiff. Klaus Gossi, `Gerichtlicher Vergleich' (Lexis 360”, September 2023) <https://360.lexisnexis.at/d/ lexisbriefings/gerichtlicher_vergleich/h_80001_2338982765791970208_a9099951de> accessed 18 April 2023. On the other hand, this legal article also leads to the understanding that the Austrian court may encourage the parties to a civil dispute to seek amicable solutions outside the court as part of conciliation efforts (e.g., the judge refers the parties to specific institutions dealing with the settlement of conflicts, such as state-recognized conciliation boards, counselling services or mediators).

Furthermore, Article 204 of the Austrian CCP also serves as the legal basis for the court- connected settlement procedure envisaged by the Austrian project `Gerichtliche Einigungsverfahren' (Osterreichischer Verein fur Co-Mediation, 20 November 2017) <https://co-mediation.or.at/gerichtliche-einigungsverfahren/> accessed 26 June 2023. around the so-called `conciliation judges' acting in `conciliation hearings. Angelika Eisenreich-Graf und Ulrike Rill, `Das Einigungsverfahren: die gerichtliche Streitbeilegung als Chance fdr die Zukunft' (2019) 4 RZ Osterreichische Richterzeitung 55; Martin Moritz, `Mediation und Vergleich im verwaltungsgerichtlichen Verfahren: Widerspruch oder Chance?' (2021) 11 RZ Osterreichische Richterzeitung 245. For almost a decade now, judges trained as mediators, or judges who have completed additional training in conflict resolution and settlement (a modular program of 100 hours, including a theory and a practical part), have been working in Austrian courts. Their role is to facilitate settlements in conflict disputes pending in court, primarily in civil, family, or tenancy law cases. Eisenreich-Graf and Rill (n 53); Meisinger (n 40) 103-6. With the parties' consent, the trial judge can refer conflictual cases, in which mediating appears more practical than judging, to a specially trained colleague judge.

Within an average of half a day, or two sessions of approximately two hours each, this judge assists the parties in working out an amicable solution using the methods of conflict management. Eisenreich-Graf and Rill (n 53); Meisinger (no 40) 104-5; Konstanze Thau, `Gerichtsinternes Einigungsverfahren: ein Jahresrdckblick Pilotprojekt zu einer alternativen Streitbeilegung' (2016) 3 Interdisziplinare Zeitschrift fdr Familienrecht 140. Conciliation judges have no decision-making authority and solely assist parties in resolving the conflict, fostering a court proceeding conducted amicably and in a future-oriented manner. Moritz (n 53). The essential point is that, in cases where the conflict has little to do with the subject matter of the legal dispute, the court proceeding is the wrong choice. In contrast, in the conciliation hearing, akin to mediation, the parties are guided to recognise each other's needs behind the conflict to shift away from their often rigid positions and standpoints and move towards a common goal. The conciliation judge does not give legal information or advice, and unlike court proceedings, a conciliation hearing is never conducted from the judge's table. The parties should be able to meet each other at eye level. Ferz (n 6).

A conciliation hearing will be successful if and as long as the parties are constructively interested in and work to solve the problem. Therefore, it can be terminated at any time by the parties, and the conciliation judge. Eisenreich-Graf and Rill (n 53). If no progress is observed in the conciliation hearing, it must consequently be terminated. Ferz (n 6). At the end of the conciliation process, an agreement can be reached regarding further proceedings before the conciliation judge, and this agreement will be informally documented for the parties, again similarly to mediation, often through a flipchart protocol. ibid. In cases where no agreement or only a partial settlement is reached, the court proceedings continue seamlessly. If the parties require more time to deal with the conflict on their own, they can be referred to mediators outside the court or other experts at their discretion. Eisenreich-Graf and Rill (n 53).

As far as the costs for the conciliation proceedings are concerned, these are already covered by the court fees (legal costs), thus eliminating any additional costs for the parties. ibid; Schmidt (n 50) 201; Thau (n 55). As already mentioned, an entry is also made in the schedule of responsibility for conciliation proceedings, but, at present, there is no case-related discharge for the conciliation judges when they are used. The only purpose of the record is to provide transparency for all parties involved. Ferz (n 6).

Another unique example of the procedural principle of promoting an amicable dispute resolution in the Austrian CCP is the attempt at reconciliation provided for in matrimonial proceedings (Art. 460 para. 7 Austrian CCP). Kodek and Mayr (n 35) 73. In cases of marital disputes, judges are granted a more active and settlement-oriented role. The Austrian CCP states in Art. 460 para. 7 that `In proceedings for divorce, the court shall, at the beginning of the oral proceedings, first try to reconcile the spouses (attempt at reconciliation) and work towards reconciliation at every stage of the proceedings, as far as possible'. Code of Civil Procedure of Austria (n 46) art 460 para 7. Such kind of court conciliation is possible not only in the first instance court but also in appeal proceedings.

The civil process is also intended to help resolve private conflicts to avoid further litigation. Therefore, the opportunity for dialogue and rational discourse should also be given at an early stage of the legal process. Thus, the Austrian legislator has provided for oral proceedings between the parties and an attempt at settlement in the preparatory hearing (Art. 258 para. 1 clause 4). Kodek and Mayr (n 35) 34-5. Art. 258 para. 1 clause 4 of the Austrian CCP proclaims, ' The preparatory hearing as part of the oral proceedings shall serve the following purposes: [...] 4. The making of an attempt at a settlement and, in the event of its failure, the discussion of the further progress of the proceedings and the announcement of the programme of the proceedings [...]'. Accordingly, attempting a settlement is one of the purposes of the preparatory hearings. Code of Civil Procedure of Austria (n 46) art 258 para 1 subpara 4. This brings the Austrian example close to Lithuania, where court conciliation is also established in a laconic way. Also, similar to Lithuania, if the case is settled at the first oral hearing, the flat fees are reduced according to note 4b of tariff post 1 of the Austrian Court Fees Act. Interestingly, in Austria, this also applies if the case is settled at the beginning of the second hearing as a consequence of mediation initiated at the latest during the first oral hearing. Proof of the mediation must be provided in writing. Court Fees Act of Austria `Gerichtsgebdhrengesetz - GGG' (as amended of 2023, current version)

<https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=1000 2667&FassungVom=2023-07-17> accessed 20 June 2023.

At this point, statistical data on court conciliation in Austria should also be discussed. However, due to the empirical scarcity of the Austrian judiciary, it is not possible to draw on current data comprehensively. Nevertheless, a performance report of the Austrian Federal Ministry from 2014 provides figures on the termination of civil court proceedings conducted that year. Thematically interesting is the distribution between the termination of proceedings by judgement and the termination of proceedings by settlement at that time. In a nationwide comparison, the number of proceedings before the local and regional courts that ended with a settlement was one-third lower than the number of proceedings that ended with a judgement in 2014. However, looking only at proceedings before the regional courts, including labour and social law proceedings, even 20% more proceedings ended with a settlement than by judgement. Thus, as the practice in 2014 has already shown, the court settlement is a non-negligible instrument for conflict resolution within the Austrian courts. Schmidt (n 50) 176-8. Concerning the conciliation judge procedures applicable in the project status, there are also no official statistics that can be referred to at this point. However, based on the personal statements of the judges involved, it can be assumed that the case numbers are rather low.

To sum up, the Austrian model of court conciliation corresponds to all the criteria set up for classical court conciliation. The Austrian court conciliation procedure is oriented towards a settlement. It may be conducted by the judge, who has been appointed as the trial judge, or by the requested judge in agreement with the parties. In the event of an unsuccessful assisted dialogue, the trial judge proceeds with the trial. Judges are not specifically trained as conciliators; but some passed training to develop their qualifications.

Court-Connected Settlement Procedures in Lithuania

Origins of the Settlement-Oriented Legal Regulation in Lithuanian Civil Justice. After the restoration of its independence in 1990, the Republic of Lithuania faced a clear need to renew the legal system and, most importantly, legislation. The previous Code of the Civil Procedure was inherited from the Soviet occupation period and did not correspond to new political and economic realities. Vytautas Nekrosius, `Naujasis civilinio proceso kodeksas ir bendrojo proceso pirmosios instancijos teisme reformos pagrindiniai bruozai' (2002) 44 Teise 102. It was decided to prepare a completely new Code of Civil Procedure of the Republic of Lithuania (Lithuanian CCP) Code of Civil Procedure of the Republic of Lithuania No IX-743 `Civilinio proceso kodeksas' of 28 February 2002 <https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.162435/asr> accessed 20 June 2023. as only such a granted a consistent transition to a modern civil procedure typical for progressive democratic states. This included choosing the concept of social civil procedure, which was grounded by the ideas of F. Klein, and following the example of the Austrian CCP as a classical outcome of this concept. Nekrosius (n 70) 102. In line with all other important conceptual changes, the new Lithuanian CCP introduced measures fostering amicable settlements into the legal system.

Dramatical political changes and a sudden transition to a democratic regime in a few years dramatically raised the courts' workload. According to R. Simaitis, this fated the growing importance of restoring legal (formal) and social (material) peace between the parties. Undoubtedly, it led to the change of the role of the judge, adding additional functions and fostering the social value of peace. Rimantas Simaitis, `Teisminis sutaikymas' (2004) 52 Teise 92. Such transformation was quite the opposite of the previous Lithuanian Soviet Socialist Republic Code of Civil Procedure, where the court had no rights or powers to encourage parties to settle. The `authoritarian' model of directive dispute resolution was predominant, all powers vested in the hands of judges, and there was no space for `cooperative' procedures and active involvement of the parties. ibid 93. Hence, the concept of the social civil procedure brought into the Lithuanian legal system a clear understanding of the need for a more active judiciary, including a set of measures oriented towards fostering more amicable resolution of disputes.

Progressive ideas of academicians about more socially oriented processes were reflected in the text of the new Lithuanian CCP. In general, the Lithuanian CCP aims inter alia on restoring judicial peace between the parties to a dispute (Art. 2 Lithuanian CCP). In Lithuanian legal science, judicial peace differs from social peace. Judicial peace refers to the final court decision, which is no longer an object of appeal. Meanwhile, social peace means reconciliation in the restoration of relationships by mutually agreed and accepted conditions. V. Vebraite explains that such wording of the aim of the Lithuanian CCP does not mean that the restoration of social peace is not important. Articles of Lithuanian CCP prove that civil procedure in Lithuania is oriented towards reconciliation of the parties, and determining the truth and passing a court judgement is necessary only when there are no further possibilities of reconciling the parties. Vigita Vebraite, `Sali^ sutaikymas kaip civilinio proceso tikslas ir jo galimybes Lietuvoje' (2008) 69 Teise 109. Reimbursement of the 75 percent of court fees in case of reaching a settlement may be mentioned. This legal rule in doctrine is qualified as the preventive aim of the civil procedure, encouraging them to settle rather than proceed with litigation. Nekrosius (n 70) 108.

Knowing the origins of the Lithuanian CCP it is natural to find several legal norms oriented toward settlements. The court is granted an active role in those cases when settlement agreements are likely to be reached. Judges were even obliged to take measures for settlements. Simaitis (n 73) 93. In line with economic incentives to settle (reimbursement of the bigger part of court fees), currently, Lithuanian CCP envisages two court-connected settlement procedures, which are accessible for all parties to the civil disputes free of charge: court- connected conciliation and court-connected mediation.

Court Conciliation. As mentioned above, the Lithuanian CCP, which entered into force on 1 January 2003, brought a new attitude towards settlements in the civil process. For the first time in Lithuania, this law introduced the court conciliation. This novelty, after a few years, inspired even further attempts to promote settlements in civil cases through court-connected mediation (see sub-chapter 4.2.2.). civil legal proceedings dispute settlemen

As in Austria, Lithuanian judges are encouraged to take conciliation measures in all civil cases. In family matters, the court has a duty to be more active and undertake measures to reconcile the parties and protect the rights and interests of the children (Art. 376 para. 2 Lithuanian CCP). In Lithuania, as in Ukraine, the conciliatory activities of the judges are, in fact, concentrated in the preparatory stage of the process. Even organising the preparatory hearing is related to the chance to settle. If the judge does not believe that settlement is possible and there are no other preconditions for organising preparatory hearing, he or she can even skip this stage of the process: `The court shall hold a preparatory hearing if it considers that a settlement can be reached in the case, or if the law obliges the court to take steps to reconcile the parties, or if this will lead to a better and more thorough preparation for the trial' (Art.228 para. 1 Lithuanian CCP).

It must be emphasised that during the Covid pandemic preparatory hearings normally were absent. After the pandemic, this situation remained the same. It seems that it is quite easier for the parties and courts to prepare for the hearing by document exchange. Judges already mentioned that the absence of a preparatory hearing is not useful for settlements in court conciliation or in recommending court-connected mediation. Vygante Milasiute ir kita, Privalomosios mediacijos seimos gincuose teisinio reguliavimo poveikio ex post vertinimas, 2023 (STRATA 2023) 1 priedas. The lack of a real in-person meeting is one of the obstacles to judges being more active in conciliation or recommending court mediation.

Lithuanian CCP states, `The court shall take steps to reconcile the parties' (Art. 213 para. 1 Lithuanian CCP). This is the only procedural rule regarding the court conciliation process. Court conciliation usually takes place in the court hall; there is no standard structure of this process as it depends on the conciliation judge (same person as a trial judge) and what practice they apply. In academia, there were attempts to suggest certain structure for the court-connected conciliation, Simaitis (n 73) 99. it was never embodied neither in legislation nor in any other recommendatory methodological materials for the conciliators. If the judge's attempts to reconcile parties prove ineffective, the court hearing continues as normal.

The Lithuanian model of court conciliation provides the conciliator role for a judge appointed to examine the case. There are no qualification requirements to take this role, as it is presumed that all judges can reconcile parties in civil cases. Naturally, the results of court conciliations differ very much. Those judges who gain knowledge and developed skills in conflict resolution achieve far more compared with those who implement the duty to reconcile only by a formal question for the parties: is there any possibility of settling? This presumption is mostly based on the results of private communication with the judges, as no research in this field has been done recently. In 2004, it was announced that about 80 percent of settlements in court were reached by private negotiation processes, and only 20 percent with the help of judges' conciliators. ibid 105. But no relevant data is available to prove the growing number of successful court-connected conciliation numbers.