China's civil procedure law, article 9 provides that "the people's court hearing civil cases, shall be based on the principle of voluntary and lawful mediation, mediation fails to timely judgment." Article 93 provides that "the people's court mediation of civil cases, according to the voluntary principle, on the basis of the facts are clear mediation". Mediation is the most characteristic system in China's civil trial, not only in the liberated areas, but also in the post-liberation decades have played a huge role. With China's transformation to the market economic system, the deepening of the reform of the trial mode, the traditional way of mediation to face the new social conditions and the challenge of ideological concepts, has revealed its shortcomings, but in the future of China's trial system, mediation is still very important value, is a major feature of China's mode of adjudication. In the new situation, improve the mediation system, should adhere to four principles, 1, is the principle of voluntariness, the principle of voluntariness refers to the parties to express their willingness to mediate under the auspices of the people's court and the content of the mediation agreement is entirely out of the will of the parties. In addition to the mandatory procedures stipulated by law, conciliation must be proposed by one party and agreed to by the other party, which should be strictly stipulated in the litigation procedure. It is against the principle of voluntariness to exert all kinds of pressure on parties not willing to conciliate and force them to conciliate to force them to reach an agreement. Of course, the principle of voluntariness is not to be left to its own devices, with no diversionary or persuasive work done. The parties have expressed unwillingness to mediate at the beginning of the litigation, after legal propaganda work, the parties voluntarily accept mediation, and voluntarily reached a mediation agreement, this is not against the principle of voluntariness. 2, the principle of lawfulness, refers to the mediation agreement must be in line with the provisions of the substantive law, and shall not be detrimental to the state, the collective interests of the lawful rights and interests of others, and, at the same time, refers to the people's court for mediation must be consistent with the civil procedural law. The procedural system provided for. The principle of legality requires that the disposition of substantive and litigation rights by the parties must be carried out within the scope of the law. The practice of forcing the parties to make unprincipled concessions in order to reach a conciliation agreement in pursuit of conciliation settlement figures is a violation of the principle of legality. However, the parties in the scope of the law, without prejudice to the state, collective interests and the legitimate rights and interests of others, mutual understanding, voluntarily give up some of their own civil rights and interests, to reach a conciliation agreement, the parties to the exercise of their right to dispose of the performance of the principle of lawfulness. 3, the principle of openness, to enhance the openness and transparency of mediation, to change the past by the judge shuttles to and from the parties to the closed back-to-back mediation way for the judge in the past, the judge to shuttle to and from the parties. Back to back mediation for open mediation in court. 4, is the principle of fairness, all mediation cases, generally should not be taken to litigation preservation and other coercive measures, the judge should not be imposed on the parties to their own claims, any party to the mediation agreement reached in the case of pressure, are unfair.
Two, the role of mediation
Mediation in the conclusion of civil cases still accounted for a larger proportion of the civil cases, such as my court in these years, mediation in civil cases still accounted for about 70%. Through mediation can resolve the conflicts between the two sides, more thorough settlement of disputes, and enhance the unity, while improving the success rate of mediation is to improve the judicial efficiency of an important part. Mediation has universal applicability in litigation, not only in the first ordinary procedure, but also in the summary procedure, the second trial procedure and the trial supervision procedure. Mediation work should be improved in terms of style and quality, in order to increase the success rate of mediation, i.e., to improve judicial efficiency. Practice has shown that, because mediation is the use of didacticism, mutual understanding and mutual concessions, and democratic consultation, it prompts the two parties to reach an agreement on a voluntary basis, and thus facilitates the parties to fulfill the agreement voluntarily, and facilitates a complete settlement of the dispute, thus making it possible for the two parties to cooperate again. In addition, since cases are settled by conciliation and do not give rise to appeals, a great deal of human and material resources and time are saved, thus achieving greater judicial efficiency. In the mediation process, due to the full reasoning, right and wrong, to the parties to publicize the national laws and policies, can improve the legal awareness and ideological consciousness of the parties to the litigation, prompting both parties to the lawsuit, eliminating barriers, turning wars into peace, thus enhancing the unity of the majority of citizens, and has an extremely important role in maintaining social stability.
Three, mediation should pay attention to the problem
1, to prevent two tendencies, a one-sided emphasis on "focus on mediation", mediation and the court in opposition, as well as too much trouble to save time and other psychological. Some parties do not agree to mediate on the tactics of procrastination, until the parties agree to mediate, individual judges even take the method of deception or suppression, forcing the parties to accept the mediation agreement, partially or completely contrary to the wishes of the parties. The judge has become a "mediator", "peacemaker", do not regard the role of the trial function, that is, weakening the law on the role of education and sanctions for offenders, resulting in a long delay in the case of the phenomenon of indecision. Another tendency to negate the role of mediation, that mediation makes the judge inert, and mediation agreement reached is often against the will of the parties, the parties to regret more, so mediation should not be promoted. One-sided emphasis on mediation must be carried out after the trial, so that mediation in the trial to go through the motions, a waste of human and financial resources.
2, out-of-court mediation should pay attention to prevent the parties to use mediation to delay the fulfillment of their obligations, this party agreed to mediate in mediation on the surface, but in the delivery of mediation on repentance, once found, it should be criticized and educated, such as still do not rectify the situation, the mediation will stop, and directly into the corresponding litigation proceedings for the trial should not be given to the parties to drill the legal loopholes, delaying the litigation.
Four, the establishment of pre-case mediation system
Pre-case mediation, refers to the parties will be submitted to the court, in the review stage, the case is clear, the evidence is sufficient, the responsibility is clear, and both sides are willing to accept the mediation, in principle, can be settled in a timely manner to fulfill the civil dispute, mediation in accordance with the law. Through mediation to achieve the end of the dispute, the purpose of stopping the dispute, especially some parties feel that the court hurt each other's face, but also very willing to mediate before the case. So these mediation completely to accept the mediation voluntary, voluntary agreement, the implementation of voluntary cash, fully embodies the litigation value and efficiency of the parties expect.
1, pre-case mediation is feasible
Because it is easy for the parties to accept. This is because the pre-case conciliation procedures are simple and flexible, timely settlement of cases, and can be realized in a timely manner. Pre-case mediation is the party's pleadings in the review of the filing stage, but also part of the trial activities of the people's court. Pre-case mediation is not subject to litigation procedures, processing flexibility, can be timely or recent voluntary fulfillment, do not produce legal documents, the formation of written agreements between the parties do not have the legal effect of enforcement, there is no appeal and complaint, pre-case mediation is not established or the parties to the mediation agreement to repudiate, can be re-mediated or filed directly to the relevant trial court hearing. Pre-case conciliation is consistent with the basic spirit of civil litigation. Mediation of civil dispute cases by the people's courts is the fine tradition and successful experience of China's civil trial work, and is also an important form of resolution of civil dispute cases by the people's courts. Mediation as the basic principle of civil litigation, stipulated in the first general provisions of civil litigation, its spirit throughout the entire process of civil litigation. Examination of the case is a part of the civil procedure, for this reason, the people's court in the examination stage, the mediation of some civil cases is fully in line with the basic spirit of civil litigation. Pre-case conciliation is carried out in full accordance with the relevant national laws and regulations and policy principles. And it is emphasized that mediation should be carried out on the premise that the parties concerned accept mediation voluntarily, that the facts of the case are undisputed, that there is sufficient evidence, that the rights and wrongs of the case are clear, and that the parties are not required to adduce evidence against the case. Simplified the procedures stipulated in the Civil Procedure Law, but still can not go beyond the legal provisions of the parties' oral statements, evidence, cross-examination and authentication. In addition, there should be signed by both parties to the written mediation agreement and reflect the whole process of dispute resolution, but also archived.
2, the case before the mediation of the general application of the type of
Debt disputes in the case of the facts are clear, the evidence is sufficient, and can be settled to cash the case. Marital disputes, the husband and wife have good relations for a long time, due to a dispute over a matter of time. Alimony dispute cases, the children have long been doing alimony obligations, due to family disputes suddenly suspended alimony disputes, after persuasion, can take the initiative to fulfill their obligations. In the case of damage dispute, both parties have no dispute over the fact of damage, but only disagree on the responsibility of fault and the amount of compensation. Other facts are clear, evidence is sufficient, responsibility is clear, both parties are willing to accept the mediation of civil dispute cases.
3, the effect of mediation before the case
Case closed quickly, less litigation investment, most of these cases within a day or a few days to solve, and can solve practical problems, but also not hurt the peace. Such as my court filed two years to try mediation before the case, **** concluded 20 cases, can be settled in a timely manner to cash, the parties are also very satisfied. Timely prevention of conflict intensification, promote social stability, because the beginning of the court, the parties are generally more agitated, if this time to solve their disputes in a timely manner, they can dissolve their unstable emotions, and receive good results. Reflecting the "principle of two facilitators" to reduce the court's litigation burden. Pre-case mediation can be timely and properly resolve simple cases before filing, not only improve the efficiency of the work, but also for the parties to provide a great convenience, reducing the time of prosecution, defense, court appearance and so on many times back and forth due to the lawsuit.
Fifth, the establishment of out-of-court mediation system
Out-of-court mediation can be divided into pre-court mediation and post-court mediation. Pre-court mediation refers to the case after the filing to the court, the facts of the case are basically clear, sufficient evidence of the case, the parties request, the judge may preside over the two sides to mediate. Post-court mediation refers to the court to pronounce judgment before the request of the parties, the facts of the case are clear, sufficient evidence of the case, can be mediated under the auspices of the judge. Carry out out-of-court mediation has important significance. First of all can improve the efficiency of the case, is conducive to the trial to adapt to the requirements of society, out-of-court mediation can be applied flexibly in the process of litigation, according to the facts of the case and the attitude of the parties to the mediation of the mediation, mediation is generally a higher success rate in the current number of cases year by year, and the people's court's trial force in the near future is unlikely to have a large increase, and carry out out out-of-court mediation, can solve a large number of civil dispute cases, is the Effective way to improve the efficiency of the case. Secondly, it is conducive to the timely settlement of disputes and facilitates litigation. Out-of-court mediation is not subject to the stage of the litigation process, can be mediated with the receipt of the case, flexible, convenient for the parties to litigation and timely settlement of disputes, fully embodies the principle of convenience. Again, is conducive to promoting unity between the parties to promote social stability, the use of out-of-court mediation, the parties believe that the issue is not put on the court, so that the better to discuss some of the defendants in the psychological antagonism smaller, to prevent the intensification of contradictions, but also easy to calmly and peacefully negotiate, and then through the court policy, legal education and ideological work to improve the parties to the legal system to enhance the unity of the effect of stabilizing society. The effect of social stability.
1, out-of-court mediation conditions. Out-of-court mediation is also the people's court litigation activities, must comply with the basic principles of civil litigation, in the hearing of civil cases, to strictly control the application of out-of-court mediation conditions. Must be the people's court has accepted the civil rights and obligations of civil dispute cases. It must be a case in which the facts are clear, the evidence is sufficient, and the responsibility is clear; only cases in which the facts are clear and the evidence is sufficient can be conciliated, regardless of whether the case is simple or complex. Must be a voluntary mediation of the parties to the case, if the parties do not agree to mediate and the judge in order to mediate the mediation of the parties to the pressure of mediation, such cases on the one hand, the parties are prone to backtrack, on the other hand, is a violation of the provisions of the law, the damage to the parties to the interests of the civil disputes with the above three conditions of the case can be applied to the mediation of the out-of-court, but there are violations of the law need to be sanctioned in accordance with the law of the case of the illegal part of the mediation should not.
2, the general method of out-of-court mediation. Out-of-court mediation should be clear, sufficient evidence, clear responsibility, legal procedures, proper handling, complete paperwork to ensure the quality of the case, for this reason, out-of-court mediation must be done. Find out the facts, right and wrong. To the case of the origin of the case, the occurrence of the rights and obligations between the parties, development, change, termination, and the cause of the dispute, the focus of the dispute between the two parties and so on. On the basis of ascertaining the facts of the case, right and wrong, but should pay attention to the ways and means, especially in the parties have not yet recognized their own faults and responsibilities, not in the face of the other party, directly point out his mistakes, to avoid causing conflicts between the parties and the court. In mediation to strengthen the parties to education and guidance work, prompt them to recognize their own fault responsibility, so that they can understand each other and reach an agreement. The methods of education and counseling should be flexible and varied. Such as the use of separate mediation work, pointing out that one side of the fault responsibility, the parties are more likely to accept, mediation success rate is generally higher, but must prevent the kind of in order to mediate, respectively, on the parties to pressure, fraud and other illegal means. Adhere to the principle of voluntary and lawful. In mediation, the parties to negotiate on an equal footing, voluntary agreement, if the parties to the divergence of opinion is relatively large, the possibility of reaching a mediation is very small, it can not be forced to mediate, should be transferred to the corresponding litigation procedures for trial.
Sixth, further improve the current trial mediation system
Trial mediation refers to the case in the trial process, after the court debate, the facts of the case is clear, the evidence is sufficient, the parties agree, under the auspices of the judge, can be organized to mediate. This mediation system is the current civil litigation in China has been used in the mediation system, is a civil trial of the necessary procedures. Generally speaking, the judge is more accustomed to out-of-court mediation, in the trial of mediation has no hope, therefore, even if the mediation is to ask the parties to the views of the mediation program to perform a mediation program, so, really in the trial can reach a mediation agreement in few cases. Must pay attention to the trial mediation, on the one hand, is conducive to improve the efficiency of the case, to ensure the quality of the case, on the other hand, is conducive to saving the cost of the case, the two sides of the contradiction, reduce both sides of the gap, and at the same time, to improve the judge's skills in handling the case, has an important reuse.
How to do a good job of trial mediation, 1, must be based on the facts of the case. Through the trial clearly the focus of the dispute between the parties, the evidence provided by both sides of the cross-examination and authentication,. The facts of the whole case to find out clearly, the focus of the dispute between the parties, the size of the differences between the two sides of the responsibility has been a clearer understanding of this basis, the parties to mediate in order to persuade the two sides, to eliminate the dispute, so that the parties to accept mediation, the mastery of the initiative of mediation. 2, must follow the principle of the parties to voluntarily, in addition to the parties to take the initiative to request mediation to solve the problem, but also for the parties to the litigation At the beginning of the antagonistic mood of the situation, pay attention to find the focus of the dispute between the parties, in order to find out the facts on the basis of a metaphor of the law, reasoning, emotion, do meticulous work, so that the parties to the gradual narrowing of differences, so that the voluntary negotiation to solve the problem. At the same time, to carefully distinguish between the voluntary acceptance of mediation and voluntary mediation agreement of the two stages, can not simply in the beginning of the litigation whether to accept the mediation as a voluntary decision conditions, the voluntary focus on the mediation agreement of the content of the existence of coercion and compulsion, but not because of the opposition to forced mediation, and the parties to carry out the necessary legal propaganda and legal education work have been abandoned. As long as through the facts, reasoning, law, both sides agree to mediate, as voluntary. 3, trial mediation, the judge should do "three good at". First of all, good use of legal propaganda, publicize the rule of law is one of the tasks of the trial, some cases can not reach a mediation agreement and our targeted legal propaganda is not enough to have a relationship, in the trial of legal propaganda, the public will be educated on the same side of the audience. Secondly, good use of evidence to educate the parties to voluntarily accept mediation, the facts are the most persuasive, evidence is the basis of mediation. Correct use of evidence in the trial, it is very important, generally not successful mediation before the trial, mainly or some of the facts of the dispute is not clear. And such as in the trial with the parties to confirm the evidence, or a party to the evidence provided by the other party has objections, but there is no evidence to refute, based on the relevant laws to persuade a party to prompt the two sides to reach mediation is very effective. 4, good use of a variety of favorable factors to promote the parties to reach mediation, pre-trial mediation and trial mediation is different, there is a serious atmosphere in the courtroom and the parties to the lawyers, as long as the judges Good use of the facts at their disposal, on the basis of right and wrong, they will cooperate to do a good job of mediation
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