Ugodowe rozwiązywanie spraw rozpoznawanych w postępowaniach działowych – wybrane aspekty procesowe
Journal Title: ADR. Arbitraż i Mediacja - Year 2018, Vol 2, Issue 42
Abstract
Settlement resolution of cases recognized in partition proceedings – selected procedural aspects Settlements in cases recognized in non-litigious proceedings are much rarer than in the process. This is predominantly determined by the non-property nature of most cases subject to this procedure, as well as by the fact that many of them are civil matters in a formal sense. The exception in this regard are partition proceedings. The material character of partition matters and the appropriate dispute between participants make the issues arising in the case of amicable settlement, in principle, similar to the problems that arise in connection with the agreement in court and mediation settlements in the field of claims recognized in the process. A multitude of issues that make up the subject matter of these proceedings is characteristic of the partition proceedings, and – with the exception of the partition of joint property after the end of the joint property – the multiple subjectivity of legal relations, which are the source of claims in these proceedings. On the other hand, the qualification of the capacity to be a subject of settlement recognized in such cases should be carried out with extreme caution, as many of them are not negotiable. This will affect the scope of mediation and the content of the settlement. This problem combines the question of whether the court may dismiss the parties' request for referral to mediation in cases where it covers issues that cannot be attributed to settlement. At the opposite end of the scale, however, the issue of admissibility of settlements and mediation settlements is located, with the content of the participants taking up claims that go beyond the subject of the proceedings. A particularly controversial issue is the form of mediation settlement in cases in which participants regulate the ownership of real estate. Contrary to the view accepted by the major part of the doctrine such a settlement, like a court settlement, should replace the special form of legal transactions. A separate issue discussed is the approval of mediation settlements and consideration of court settlements from the point of view of the principle of integrity of judgments characteristic for the proceedings. Considerations of rationality also require accepting it in relation to settlements.
Authors and Affiliations
Joanna Mucha
Keywords
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