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

Court Mediation. Despite the fact that today, in Lithuania measuring in numbers, out-of-court mediation prevails, for the first time in the Lithuanian legal system, this amicable dispute resolution was introduced in 2005 through a court-connected mediation pilot project. This pilot project was inspired by the good practice of the province of Quebec in Canada Natalija Kaminskiene, `Teismine mediacija Lietuvoje. Quo vadis?' (2010) 9(1) Socialinis darbas 58.. It was implemented inside the court system by several enthusiastic judges and academicians on the grounds of the decree of the Judicial Council. Resolution of the Council of the Judiciary of the Republic of Lithuania No 13P-348 `On the Trial Project of Judicial Mediation' of 20 May 2005 <https://www.teismai.lt/data/public/uploads/ 2005/05/20050520-348.doc> accessed 20 June 2023. Such inspiration may be grounded by the disclosed benefits of the settlements and the need for more active assistance for the parties in their negotiations. In a few years, this initiative exceeded the limit of the pilot project, and court-connected mediation is available in all Lithuanian courts both in civil (from 2011) and administrative (from 2019) disputes and has already become an integral part of the civil and administrative procedure.

According to I. Saudargaite, court-connected mediation `was introduced into the Lithuanian legal system by applying a mixed approach (a different approach as compared to the one adopted in most countries of civil tradition): it was implemented by attempting to apply it from court-to-court (so-called “pragmatic approach”) jointly with the adoption of the legal regulation of this ADR procedure (so-called “legislatic approach”)'. Ieva Saudargaite, `Judicial mediation in civil disputes in Lithuania' (DPhil thesis, Mykolo Romerio universitetas 2015) 210. This has fated extremely close relations between court-connected mediation and courts. Even today, such an approach results in the specific position of the judges in the national list of mediators. Judges are enrolled in this list according to different rules to compare with other mediators. Law of the Republic of Lithuania No X-1702 `On Mediation' of 15 July <https://e-<seimas.lrs.lt/ portal/legalAct/lt/TAD/a1214b42d40911eb9787d6479a2b2829?jfwid=13yl78zgim> accessed 20 June 2023. According to Art 6 para 4 of Law on Mediation, judges, who have gained no less than 3 year working experience, are not required to pass mediator`s qualification exam and for them enough to have 16 hours initial mediation training (regular requirement - 40 hours).

The parties may initiate court-connected mediation, and the judge can recommend parties to a dispute to mediate. At the beginning of the application court-connected mediation in Lithuania was completely voluntary. In 2019, judges were also granted the discretion to refer parties to a dispute to mandatory court-connected mediation (Art. 231¹ para. 1 Lithuanian CCP).

Today, the general principle is that court mediation is voluntary. Still, in cases where judges see the clear perspective of settlement, they might use their discretion to order parties to mediate mandatory.

Judges or private mediators serve as mediators in civil cases. Both should be enrolled on the Lithuanian list of mediators. `The List of Mediators of the Republic of Lithuania' (Lietuvos elektroniniy paslaugy portale, 2003) <https://e.teismas.lt/lt/public/teismin%C4%97-mediacija/> accessed 20 June 2023. Statistics show that judge mediators mediate the bigger part of court mediation processes, and only in rare situations are private mediators invited to help. National Courts Administration, Annual Report of Lithuanian Courts 2021 (Lietuvos teismai 2022) 2 <https://www.teismai.lt/data/public/uploads/2022/03/teismai2022.pdf> accessed 20 June 2023. Judges (if he or she is a mediator) can mediate even in the cases where they are commissioned. Also, the judge can refer parties who are willing to mediate to another judge mediator. In case there is no judge available or willing to mediate, the judge who is examining the case can request a private mediator appointment with the State Guaranteed Legal Aid Service (Art. 231<sup>1</sup> para 2 of Lithuanian CCP). After getting such a request, this institution appoints one of the private mediators', who are listed in the Lithuanian list of mediators and are in contractual relations with an appointing body. The court order to start the court mediation procedure postpones the proceedings and sets a precise time for the next hearing. Court mediation should be finished by that date, but this time limit may be extended upon the mediator's request (Art. 231<sup>1</sup> para. 3 Lithuanian CCP). After the appointment, the mediator continues the process following the general concept and structure of mediation. During the court mediation period, `the appointed mediator shall have access to the civil file, or, at the mediator's request, the civil file shall be handed over to him or her for signature' (Art. 231¹ para. 3 Lithuanian CCP).

The process of the mediation, from the appointment of the mediator to the termination of it, is not regulated in detail. The procedural part of court mediation is mostly regulated by the Rules of Court Mediation. Resolution of the Council of the Judiciary of the Republic of Lithuania No 13P-125-(7.1.2) `Rules on Court mediation' of 30 November 2018 <https://www.e-tar.lt/portal/lt/legalAct/70208500f79411 e880d0fe0db08fac89/asr > accessed 20 June 2023. Mediators must secure implementation of basic mediation principles (voluntariness, confidentiality, mutual respect, neutrality and impartiality of the mediator, cooperation, professionalism of the mediator and honesty (clause 6) and may arrange the process as they see is suitable, including decisions in regard of the forms of mediation. They can have common sessions, caucuses, organise distance mediation, etc. (clause 20). The court mediation process may be terminated: 1) after the signing of a settlement agreement; 2) when any party to the dispute withdraws from the process; 3) after the end of the term established in the court order; 4) after the mediator terminates the court mediation process (if it is clear that settlement cannot be reached, of the settlement will be unenforceable or illegal, etc. (clause 27).

In case of the settlement, the judge, who performs in both capacities (as judge and mediator), may approve the agreement. If the judge is appointed only as a mediator, the parties must submit the settlement agreement to the judge, primarily commissioned to hear the case. Court approval provides the settlement agreement with res judicata power, which is included in the court decision text. At the same time, it finishes court proceedings. The judge mediator cannot take part in the substantive proceedings. This means that if a judge was mediating the case, where he was primarily assigned as a judge, in case of not settling, he or she must be changed with another judge, who will step into the process and examine the case regularly.

Statistical data shows that court-connected mediation is still rarely used in practice. According to the data provided by the National Administration of Courts, the number of civil cases transferred to court-connected mediation in 2022 was 597, 5 percent more than recorded in 2021 (574 cases). 516 cases were mediated in courts in 2020, and 533 cases in 2019. In 2022, the success rate of mediation in civil cases in Lithuania reached 45 percent. In 2022, as in previous years, the largest number of civil cases referred to court-connected mediation were related to family matters, the law of obligations and cases arising from real estate legal relations. Relatively low numbers of court-connected mediation and the tendency to remain at the same level without any sufficient growth inspires discussion in the judiciary and beyond about the constant need to develop this institute. National Court Administration, Annual Report of Judicial Mediation Commission 2022 (Lietuvos teismai 2023) <https://www.teismai.lt/data/public/uploads/2023/04/teismines-mediacijos-komisijos- 2022-m.-veiklos-ataskaita.pdf> accessed 20 June 2023.

Benefits for the Judges who Conciliate or Mediate. In Lithuania court conciliation is a duty of the judges in all courts and all judges are in fact conciliators. Remarkably, judges do not receive any additional salary for doing it. This scenario varies slightly for judges who function as court mediators. Those judges may serve as court mediators, albeit without a right to mediate in out-of-court processes, and their involvement is entirely voluntary. Those, who are willing to be court mediators, must be enrolled in the Lithuanian List of Mediators. In their case, it is required only to have not less than three years of working as a judge experience and take a 16-hours introductory course on mediation. In regard of additional payments, it should be stated that judge mediators are not getting any additional money for being court mediators. But they workload (number of cases) is reduced if they perform court mediations. Resolution of the Council of the Judiciary of the Republic of Lithuania No 13P-79-(7.1.2) `On approval of the description of the procedure for calculating workload in the courts' of 29 May 2015 <https://e- seimas.lrs.lt/portal/legalAct/lt/TAD/276081500e1b11e5b0d3e1beb7dd5516/asr> accessed 20 June 2023. According to the ruling the court mediation is granted coefficient of complexity 0,5. The most complicated cases in courts of 1st instance are granted 1,7 coefficient. These cases are related to insolvency procedure. In fact 0,5 coefficient shows, that Council of judges treat performance of court mediation as simple case. The lower coefficient 0,4 is granted only for cases in enforcement procedure and court order issuing cases.

Lithuanian judge mediators express their dissatisfaction with such arrangements, emphasising that mediation demands more effort and time than handling ordinary cases. Agne Tvaronaviciene and others, `Towards More Sustainable Dispute Resolution in Courts: Empirical Study on Challenges of the Court-Connected Mediation in Lithuania' (2021) 8(3) Entrepreneurship and Sustainability Issues 645, doi:10.9770/jesi.2021.8.3(40).

In addition, being a court mediator or good conciliator can positively impact one's career in the court system. According to judges, being a court mediator add some points in evaluation of the judge. This is reflected in legal regulation as well. Resolution of the Council of the Judiciary of the Republic of Lithuania No 13P-135-(7.1.2) `On approval of the description of the procedure for evaluation of the activities of judges' of 13 October 2014 <https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/c42840b0646e11e48710f0162bf7b9c5/asr> accessed 20 June 2023. According to the ruling, the evaluation system is created and based on general evaluation and some additional activities of the judges, which gains him or her additional evaluation points. Mediation is one such activity in line with others, including many cases, which were ended by the settlement. Para. 10.5. of this ruling envisages the possibility of gaining up to 5 additional points for the performed court mediations (evaluating the number of mediated cases and their results). The same point may be gain for the settlement agreements number in investigated cases and other additional activities.

To sum up, Lithuania's parties involved in a civil dispute have two court-connected options promoting settlement. In every civil case, the court must 1) offer the parties the possibility of agreeing on terms suitable for both parties and the conclusion of an amicable settlement and 2) notify the parties of the possibility of resolving the dispute through judicial mediation. The desired result of both these procedures is a settlement agreement, which, after court approval, gains res judicata effect. Court conciliation may be performed in all cases and is carried out by the judge, who is examining the case, during the preparatory hearing. Court mediation is more intensive interruption by the neutral third party. It can be done in all stages of civil procedure. As mediators here, in most cases, they serve trained judge-mediators or private mediators outside of the court system.

Court-Connected Settlement Procedures in Ukraine

Origins of the Settlement-Oriented Legal Regulation in Ukrainian Civil Justice. As historically different territories of modern Ukraine were parts of the Russian Empire and the Austro-Hungarian Empire, both the 1864 Russian Empire Statute of Civil Procedure and the 1895 Austrian Code of Civil Procedure were in force in different lands. Iryna Izarova, `Judicial Reform of 1864 on the Territory of the Ukrainian Provinces of the Russian Empire and Its Importance for the Development of Civil Proceedings in Ukraine' (2014) 2(4) Russian Law Journal 114, doi:10.52783/rlj.v2i4.250; VV Komarov, Civil Procedural Legislation in the Dynamics of Development and Practice of the Supreme Court of Ukraine (Pravo 2012) 13-4. Both codes were prominent examples of civil procedural codifications of the 19<sup>th</sup> century. However, later, during the Soviet period, all achievements in civil procedure area were abandoned, and the so-called `principle of socialistic legality', according to which all state authorities and citizens were obliged to comply with the requirements of the legislation, which primarily served the interests of the state instead of human rights and freedoms, became prevailing over any considerations in civil procedure. Komarov (n 92) 16-8. The abovementioned has factually cut off the Ukrainian civil procedure from the European tradition in the civil justice area for a long period.

Only after gaining independence in 1991 and ratifying the European Convention on Human Rights in 1997 did Ukraine prove its commitment to European legal values, reflected in the Civil Procedure Code of Ukraine in 2004. Code of Civil Procedure of Ukraine No 1618-IV of 18 March 2004 <https://zakon.rada.gov.ua/ laws/show/1618-15#Text> accessed 20 June 2023. However, at that time, neither legislators nor legal practitioners paid enough attention to the peaceful settlement of disputes in civil procedure. Later, with the donor community's support, the interest in this issue increased. It resulted in the introduction of several pilot projects within the justice sector aimed at the implementation of amicable dispute resolution procedures into civil procedure. The most relevant in this regard was the judicial mediation pilot project with the European Commission and the Council of Europe Grants of the European Commission and the Council of Europe `The procedure for selection and appointment of judges, their preparation, bringing to disciplinary responsibility, distribution of cases and alternative dispute resolution' in 2006-2007 and `Transparency and effectiveness of the justice system in Ukraine' in 2008-2011. and a project implementing the special procedure for settling a dispute with the participation of a judge supported by the Canadian National Judicial Institute. Project `Education of Judges for Economic Growth' with the support of the Canadian National Judicial Institute. About projects see more detail: T Tsuvina and A Serhieieva, `Comprehensive Analysis of the Current Situation, Barriers and Possibilities of Mediation Development: with Recommendations for the Promotion and Implementation of Mediation in Ukraine' (2019) 24-5; Tetiana Tsuvina and Tetiana Vakhonieva, `Law of Ukraine “On Mediation”: Main Achievements and Further Steps of Developing Mediation in Ukraine' (2022) 5(1) Access to Justice in Eastern Europe 142, doi:10.33327/AJEE-18-5.1-%20n000104.

The latter procedure was enshrined in the national civil procedural legislation in 2017 through the adoption of the new edition of the Civil Procedural Code, strengthening the consensual tenet in civil procedure as a part of Ukrainian reforms aimed at the adaptation to the legislation to the EU law. Iryna Izarova, `Civil Procedure Reform During the Period of Ukraine's Independence: New Goals and Principles' in Yu Prytika and I Izarova (eds), Access to Justice in Conditions of Sustainable Development: to the 30th Anniversary of Ukraine's Independence (Dakor 2021) 32. The Civil Procedural Code of Ukraine (Ukrainian CPC) enshrines that the court inter alia shall: `promote the settlement of a dispute by reaching an agreement between the parties' (Art. 12 para. 5 clause 2 Ukrainian CPC). In first-instance courts, the parties during the preparatory hearing are asked about their wish to settle the dispute using ADR methods, in particular, mediation, arbitration, or settlement of the dispute with the participation of a judge (Art. 197 para. 2 clause 2 Ukrainian CPC). Mediation and arbitration, in this case, are purely out-of-court processes, which can be chosen by the parties voluntarily and carried on outside the court. If parties decide to mediate, the court suspends proceedings (Art. 251 para. 1 clause 4-1 Ukrainian CPC), and parties can go to a mediator outside the court. About Ukrainian model of mediation and its integration into the court proceedings see: Oleksandr Drozdov, Oleh Rozhnov and Valeriy Mamnitskyi, `Mediation and Court in Ukraine: Perspectives on Interaction and Mutual Understanding' (2021) 4(3) Access to Justice in Eastern Europe 181, doi:10.33327/AJEE-18-4.3-n000082;Vytautas Nekrosius, Vigita Vebraite, Iryna Izarova and Yurii Prytyka, `Legal, Social and Cultural Prerequisites for the Development of ADR Forms in Lithuania and Ukraine' (2020) 116 Teise 8, doi:10.15388/teise.2020.116.1; Yurii Prytyka, Iryna Izarova, Serhii Kravtsov, `Towards Effective Dispute Resolution: A Long Way of Mediation Development in Ukraine' (2020) 29(1) Asia Life Sciences 389; Tsuvina and Vakhonieva (n 96); Tsuvina and Serhieieva (n 96), etc. If parties decide to refer their case to arbitration, their written arbitration agreement is considered as a ground to close the proceeding (Art. 255 para. 1 clause 8 Ukrainian CPC). The court connected the settlement option - settlement of a dispute with the participation of a judge. This method is regulated in a more detailed way, and Ukrainian scientific literature is often characterised as a type of court conciliation. A Kotsiuruba, `Conciliation Procedures In Civil Proceedings In Ukraine' (2020) 2(113) Bulletin of Taras Shevchenko National University of Kyiv Legal Studies 28, doi:10.17721/1728-2195/2020/2.113-6; Tetiana Tsuvina, `Implementation of the Institute of Court Mediation as A Promising Direction of Reforming the Civil Procedural Legislation of Ukraine' (Ukraine on the Way to Europe: Reform of Civil Procedural Legislation: International scientific and practical conference, Kyiv, 07 July 2017) 195.

Settlement of a Dispute with the Participation of a Judge. The Ukrainian model of court conciliation is unique in several aspects. In most countries, despite proclaiming to have settlement-friendly civil procedures, laws pay little attention to the court conciliation process. For example, in Lithuania, it is merely stated that the court shall take steps to reconcile the parties (Art. 231 para. 1 Lithuanian CCP). In contrast, the Ukrainian CPC dedicates a separate chapter to the settlement of a dispute with the participation of a judge. The uniqueness of the Ukrainian court conciliation model lies, firstly, in the clear notion that this procedure is distinct from the court hearing and can only proceed with the agreement of the disputing parties.

It should be noted that this process is time-restricted (maximum 30 days, with no possibilities of extension) and may be carried on only before the commencement of the proceedings on merits. All civil case judges should be prepared to apply this procedure, as the conciliator is the judge who was primary assigned to trial a case. Also, such a process may be carried out only if no third parties with stated independent claims are involved (Art. 201 para. 2 Ukrainian CPC). This settlement procedure starts by issuing the court's ruling, which suspends the proceedings.

It should also be noted that parties to a dispute can utilise this settlement procedure with the participation of a judge only once, as the repeated settlement of the dispute with the participation of a judge is not allowed. Ukrainian legislation in the field of settlement procedure with the participation of a judge emphasises the possible forms of the meetings, permitting both joint and separate meetings. Joint meetings involve all parties, their representatives and judges, while separate meetings are organised with a judge and each party separately (Art. 203 Ukrainian CPC).

Judges who fulfil this settlement procedure must explain the purpose, procedure, parties' rights and obligations in the settlement process (Art. 203 Ukrainian CPC). While this legal norm allows us to predict that there is a certain standard procedure which judges must follow, there is no available data about any additional documents that may reveal the key aspects of this settlement procedure. The lack of procedural rules and the absence of specific judges' training in the conciliation field causes situations where every judge follows his model of conciliation.

The Ukrainian CPC delineates the rights of judges in the settlement procedure. There is a clear distinction between what can be done by the judge during joint meetings and what can be done during separate meetings. During the joint meetings, the powers of the judge are limited to clarifying the grounds and subject matter of the claim, the grounds for objections, explaining the standard of proof in such cases, inviting parties to make proposals for peaceful settlement of disputes, and taking other actions aimed at peaceful settlement of the dispute by the parties. The judge may also suggest to the parties a possible peaceful dispute settlement (Art. 203 para. 4 Ukrainian CPC), emphasising the judge's role as a legal advisor. During closed meetings, judges are allowed to share even more of their knowledge by informing the party of case law in similar disputes and offering the parties and (or) their representatives possible ways of peaceful dispute settlement (Art. 203 para. 5 Ukrainian CPC).

This legal framework indicates that while the legislator expects the judge conciliator to play an active role, the focus is exclusively on sharing legal knowledge rather than using the conciliator's soft skills. The Ukrainian CPC explicitly prohibits judges from providing legal advice, recommendations, or assessment of evidence in the case (Art. 203 para. 6 Ukrainian CPC).

In summary, judges possess the right to share their legal knowledge and experience but are prohibited from offering legal advice. The practical implementation of this legal norm poses challenges, as distinguishing between providing information and delivering legal advice can be elusive. The Ukrainian settlement involving a judge procedure is confidential. No minutes are kept or voiced, nor are video records or photos taken during the process (Art. 203 paras. 7 and 9 Ukrainian CPC).

Termination of this settlement procedure can occur for four reasons 1) upon the submission of an application by a party to terminate the dispute settlement with the participation of a judge; 2) when the stipulated period for settling a dispute with a judge expires; 3) at the judge's initiative in case of delay in dispute settlement by any of the parties; 4) in case of concluding a settlement agreement by the parties and applying to the court with a statement of its approval or the claimant's application to the court to leave the claim without consideration, or in case the claimant refuses the claim or the defendant recognises the claim. Ukrainian legal regulation envisages the rule related to the case transferal to the other judge in case of an unsuccessful settlement procedure (Art. 204 paras. 1 and 4 Ukrainian CPC), highlighting the Ukrainian legislators' concern for the judge's impartiality.

As mentioned before, all judges working within the civil justice system are obliged to be prepared to assist parties in settlement procedures. Notably, considering the specific skills and knowledge required for this task, Ukrainian judges do not undergo any special education about soft conflict management skills and conciliation procedures. The National School of Judges has developed a two-day training on the settlement of a dispute with the participation of a judge. It has three modules (`Dispute settlement with the participation of a judge: historical excursion, international practice, difference from mediation. Principles and advantages of the procedure'; `Psychological aspects of the dispute settlement with the participation of a judge'; `Procedure and conditions of the Dispute settlement with the participation of a judge in civil proceedings'). `Settlement of a Dispute with the Participation of a Judge in Civil Proceedings' (National School of Judges, 23 June 2020) <http://www.nsj.gov.ua/ua/news/vreguluvannya-sporiv-za-uchastu-suddi-v- tsivilnomu-sudochinstvi-/> accessed 20 June 2023. However, it is not obligatory for the judges to participate in such training.

A settlement procedure with the participation of a judge is seen as an option for the parties and requires additional time from the judge's side. All judges, however, are expected to provide such assistance to the parties regularly and are not encouraged to do it or promote it through additional payments, reduced workload or any other benefits.

Statistical data shows that this procedure is not very popular in practice. In particular, in 2019, there were 50 rulings on conducting this procedure and 102 rulings on its closure (taking into account settlement procedures started in 2018, including 12 cases which were reconciled and 32 cases transferred to another judge for further consideration); in 2020, there were 77 rulings on conducting of this procedure and 78 rulings on its closure (including 22 cases which were reconciled, and 55 cases, which were transferred to another judge for further consideration); in 2021, there were 66 rulings on conducting of this procedure and 66 rulings on its closure (including 12 cases which were reconciled, and 47 cases transferred to another judge for further consideration) were issued; in 2022, 22 rulings on conducting of this procedure and 28 rulings on its closure (including 3 cases which were reconciled, and 22 cases transferred to another judge for further consideration) were issued. The relatively low number of procedures prompts discussion about new approaches in this regard. One of the options can be introducing judicial mediation or providing special education for judges in conflict management skills to enhance the effectiveness of the existing amicable dispute resolution procedure.

In summary, parties involved in civil disputes in Ukraine can enter into specific settlement procedure with the participation of a judge, blending elements of both court conciliation and court mediation methods. This procedure can be viewed as an example of a court- amicable conciliation process. Notably, it differs from the classical court conciliation as the judge conciliator in Ukraine lacks the authority to continue the trial in the capacity of a judge if the conciliation procedure proves unsuccessful. Moreover, this settlement procedure is confidential, with the conciliator acting impartially and independently, aligning it with court mediation.

However, this process is distinctive due to the judge's qualifications. All Ukrainian judges in civil cases can attempt to reconcile their parties to a dispute, and no specific training is mandatory for them. While the settlement procedure is regulated in detail, there is a notable lack of clarity regarding the procedural steps and the overall structure that judges should adhere to. Furthermore, there are no clear boundaries for judges when sharing their legal knowledge and experience with the parties in a dispute.

In Ukraine, mediation is possible during the court proceedings, but it should be carried out outside the court by private mediators. Judges are not allowed to provide out-of-court mediation services.

Comparison of the Court-Connected Settlement-Oriented Procedures in Austria, Lithuania, and Ukraine

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