The Place of Settlement Negotiation in Civil Procedure
Settlement negotiation is the route by which the parties to a civil dispute reach their own agreement on the subject matter instead of awaiting the court's decision. The Civil Procedure Code of Georgia gives this route a complete legal framework: it regulates the judge's duty to facilitate settlement, the distribution of court costs upon settlement, and the securing and enforcement of agreements reached through mediation. Settlement allows a dispute to end on terms that satisfy the parties' real interests while significantly reducing time and expense.
The Judge's Role in Facilitating Settlement
Article 218 of the Code gives the court an unambiguous direction: the court must facilitate settlement in every way and must take every measure provided for by law so that the parties end the case by settlement. For this purpose the judge is authorised, on the judge's own initiative or at a party's motion, to announce a recess during the court session and, without the presence of other persons, to hear only the parties or only their representatives. The norm further provides that the judge may point out the possible outcomes of the resolution of the dispute and propose settlement terms to the parties, and may propose to the parties the possibility of ending the dispute by transferring the case to a mediator. Before the case is ended by settlement, the parties must submit a certificate concerning a public-law restriction, confirming that no public-law restriction is registered on the subject of the dispute — whether a thing or a non-material property benefit — and containing the data in force at the moment of the settlement.
The Distribution of Court Costs Upon Settlement
One practical question of any settlement is costs. Article 54 of the Code regulates the distribution of court costs and attorney's fees where the claim is withdrawn or the case is settled. If the claimant withdraws the claim, the defendant does not reimburse the claimant's costs. The exception is the case where the claimant failed on the claim only because the defendant voluntarily satisfied it after the claim was filed: at the claimant's request, the court will then charge the defendant with reimbursing all costs incurred by the claimant, including attorney's fees. If, however, the parties themselves determined the distribution of costs in their settlement, the court decides this question according to their agreement.
Securing and Enforcing the Mediated Settlement
The mediation-related procedural norms allow a party, before the start of court or private mediation or during the process, to apply to the court for a measure securing the mediated settlement. Such a measure survives only if the related time limits are observed: if within 10 days of the application being granted the party does not start mediation and does not submit a confirming document to the court, or if within 10 days of the end of the mediation the party does not file a claim or a motion to resume the proceedings, the court will issue a ruling canceling the measure. If the party applies to the court within 10 days of the end of the mediation, the measure securing the mediated settlement is transformed into a measure securing the claim. The enforcement of a settlement drawn up as a result of private mediation is examined, on the application of one or both parties, by the district court of the applicant's place of residence or legal address. The party must submit the original or a duly certified copy of the settlement together with the agreement on mediation. The question is examined without an oral hearing, within 10 days of receipt of the application; if the court appoints an oral hearing, the time limit is 30 days. The court will refuse enforcement if the content or conditions of the settlement contradict legislation or public order, or if performance is impossible. A positive decision takes the form of a ruling, the party receives a writ of execution, and that ruling is final and not subject to appeal, whereas a ruling refusing enforcement may be appealed by a private complaint. A settlement approved by an arbitral tribunal as an arbitral award is enforced under the rules established by the law on arbitration.
Frequently Asked Questions About Settlement Negotiation
Is the judge obliged to steer the parties toward settlement?
The court must facilitate settlement in every way, but the decision whether to end the case by agreement belongs to the parties: settlement is a voluntary institution.
Who reimburses costs if the case ends by settlement?
If the claimant withdrew the claim after the defendant voluntarily satisfied it following the filing of the claim, the court, at the claimant's request, charges the defendant with reimbursing every cost, including attorney's fees. If the parties themselves fixed the distribution of costs in their settlement, the court decides according to their own agreement.
When is enforcement of a mediated settlement refused?
The court refuses enforcement if the content or conditions of the settlement contradict legislation or public order, or if, followings from its content, performance is impossible. A ruling of refusal may be appealed by a private complaint.
Within what period is enforcement of a private-mediation settlement examined?
The question is examined without an oral hearing within 10 days of receipt of the application. If the court sets an oral hearing to help clarify the circumstances, the period is 30 days. The parties' failure to appear cannot prevent the examination.
How We Help on Legal.ge
The advocates of Legal.ge will assist you at every stage of settlement negotiation: we will assess how settlement serves your interests, prepare your negotiation position and the draft settlement terms, guide you on the distribution of costs, and ensure that the agreement you reach is lawful and enforceable. Contact us so that your dispute ends on terms favourable to you.