The dissertation is devoted to a comprehensive study of conciliatory
procedures in commercial proceedings.
Chapter 1, "Theoretical and Legal Foundations of Conciliatory Procedures in
Commercial Litigation", explores the concept, role, and significance of
reconciliation, as well as the types (methods) of Conciliatory Procedures used in
Ukraine’s commercial process. Conciliatory procedures are defined as voluntary
interaction between parties aimed at dispute resolution. It is argued that terms like
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"conciliatory procedure" and "reconciliation" are more accurate than expressions
like "reconciliation procedure" and "reconciliatiory procedure".
The classification of dispute resolution methods is refined, distinguishing
between judicial and extrajudicial ones. Among judicial methods, a distinction is
made between (1) those requiring active judicial involvement (e.g., judge-assisted
settlement), and (2) those involving the judge only at the final stage (e.g.,
settlement agreement approval, withdrawal of a claim, admission of a claim).
Key advantages of conciliatory procedures are summarized: preserving
business relations, identifying causes of contract breaches, fast rights restoration,
efficient communication, flexibility, and party control over the process.
The dissertation argues against strict legislative regulation of negotiation,
mediation, and other conciliatory forms, as flexibility is essential. It supports
granting a right, not an obligation, to use judge-assisted settlement or mediation.
Three main types of reconciliation in Ukraine’s commercial process are
proposed: pre-trial dispute resolution, judge-assisted settlement, and settlement
agreements.
It has been further substantiated that there is a need to expand awarenessraising efforts regarding conciliation procedures, as well as to establish in the
Commercial Procedure Code of Ukraine the judge’s obligation to inform the
parties – at any stage of the proceedings prior to the resolution of a commercial
dispute – about the possibility of using amicable methods of dispute resolution.
The identification of categories of commercial disputes where conciliation
procedures are appropriate has been further developed, with the following cases
highlighted: (1) when there is a need for the prompt resolution of the dispute;
(2) when the dispute primarily concerns technical issues; (3) when the parties share
a complex mutual interest that does not fully-or at all-fall within the legal domain;
(4) when the dispute involves trade secrets or other confidential matters that the
parties prefer not to disclose to third parties.
For the first time, the dissertation proposes allowing simplified court
proceedings when a settlement (e.g., a mediation agreement) has already been
reached.
Chapter 2, "Characteristics of Reconciliation Procedures in Commercial
Proceedings", provides in-depth analysis of pre-trial resolution, judge-assisted
settlement, and settlement agreements.
It has been concluded that, in essence, the current institution of pre-trial
dispute resolution would be more appropriately referred to as the "extrajudicial
(claim-based) procedure for dispute resolution," recognizing it as an optional stage
of the commercial court process.
Given the dynamic and time-sensitive nature of commercial relations, it is
proposed to reduce the legislative response period to a claim from one month to
10 days.
Improvements to judge-assisted settlement include involving a specially
trained judge or mediator. The procedure could be led by another judge (appointed
via automatic case distribution) or by an in-court mediator.
