Conciliation procedures for mediation arising from civil law relations, as well as for disputes arising from labor and family law relations
The procedure for conducting mediation in disputes pending before the court is regulated by the CPC and the Law on Mediation. In accordance with article 1 of the Law on Mediation, the mediation procedure may be applied to disputes arising from civil law relations, as well as to disputes arising from labor and family law relations. According to the statistics on cases of establishing paternity and collecting alimony, 29 cases out of 276 cases were discontinued due to the conclusion of mediation agreements in 2017, and 24 cases out of 167 cases were completed by mediation in 2016. Violations of the norms of procedural legislation during the approval of mediation agreements have not been established. When deciding by the court whether to approve a mediation agreement concluded between the parties, in some cases the courts do not comply with the requirements of Article 48 of the CPC that the court does not approve the parties' agreement to settle the dispute through mediation if these actions contradict the law or violate someone's rights, freedoms and legitimate interests. For example, on December 21, 2017, the Juvenile Court No. 1 of East Kazakhstan Region approved an agreement on dispute settlement through mediation in the claim of B. to R. on establishing paternity and collecting alimony for the maintenance of minor B., born on November 7, 2016, issued a ruling on the termination of proceedings in accordance with part 4 of Article 179 of the CPC.
Under the terms of the mediation agreement, the defendant undertook to pay the plaintiff 30,000 tenge per month for the maintenance of their child together, and if there is additional income, transfer the agreed amount in agreement with the plaintiff. At the same time, there is no information in the case file confirming the establishment of paternity on a voluntary basis. Approving the mediation agreement, the court did not specify from the parties how the dispute was resolved on a voluntary basis, and did not take into account that the existence of a court ruling on the termination of proceedings prevents the retrial of such a dispute. In addition, the state fee paid by the plaintiff when filing a claim in this case has not been refunded, whereas in accordance with subitems 1-3) of paragraph 1 of Article 548 of the Tax Code of the Republic of Kazakhstan, in connection with the conclusion of an agreement on reconciliation of the parties through mediation, the plaintiff's court costs for the payment of the state fee are subject to refund. Mediation is also possible at the stage of appeal and cassation review of a case if the parties have concluded an agreement on dispute settlement before the case is considered in the courts of appeal or cassation instances.
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