Faiq A. Kh. The Legal Effects of Judicial Conciliation: A Comparative Study

Abstract

Judicial conciliation is considered an alternative procedural mechanism to ordinary litigation procedures, which are often complex, lengthy, and costly. Judicial conciliation aims to terminate the dispute between the parties, wholly or partially as the circumstances require, in an amicable manner through a third party who enjoys independence and impartiality. The Iraqi legislator has not regulated judicial conciliation, whereas some Arab and foreign laws have regulated it either within their provisions, by a special law, or through procedural codes including the French, Omani, and Emirati laws - due to the importance of this mechanism in relieving the burden on the judiciary. Judicial conciliation provides particular care in settling disputes by offering assistance in resolving the conflict, granting the disputing parties and the judicial conciliator a broad scope and an active role in settling the dispute at the lowest cost and in the shortest possible time by means of a consensual agreement. Accordingly, judicial conciliation should produce numerous effects, some relating to the settlement decision and others relating to the outcome itself. Comparative laws and legislations that have regulated judicial conciliation have differed in defining those effects. In all cases, the obligation to engage in judicial conciliation is an obligation as to the means, not as to the result. A settlement record is drawn up if the judicial conciliation process succeeds wholly or partially; however, this may not always be achieved, as it may end in failure for various reasons, in which case the dispute is brought before the competent court and proceedings in the lawsuit resume.