Background, age:

Civil mediation is one of the most important basic principles of the civil procedure law. Do the civil mediation, to resolve conflicts, promote the normal circulation of social exchange, has very important practical significance. In July 28th of this year our Supreme People's court in Harbin held a grand national court mediation work experience exchange meeting, it is 60 years since the founding of the national court system, the largest on the mediation work conference, is the 30 years of reform and opening up the court for the first time on the court mediation work held a special meeting. So say the meeting of extraordinary significance, history in the mediation work of the people's court is a milepost, epoch-making significance.

1, mediation is the Chinese excellent culture and the people's judicial tradition.

Chinese culture emphasizes the "harmony", "lawsuit disputes", "Silence", "happy tune detesting lawsuit" dispute resolution consciousness emphasize official mediation, civil mediation, the clan mediation role, pay attention to focus on the long term, the pursuit of a harmonious dispute resolution art. Our country as early as in 1963 the first national civil trial work conference formally "investigation, mediation, the local solution" as the civil trial work of the twelve character principle. 1964 will be the development of "relying on the masses, investigation and study, solves, mediation" sixteen character principle. In 1979 February, the Supreme People's court reiterated that "the sixteen character principle", "in dealing with contradictions among the people" must adhere to the principle of "mediation first". Since the reform and opening up for court mediation work and made a lot of sense of innovation and try, from "to mediate, when the working principle of adjudication, the combination of transfer negotiations, conclude the case" until now we implement the "giving priority to mediation, the combination of transfer negotiations", you should not be difficult to find principle of court civil cases has been dominated by mediation, is this why? Because this is the inevitable requirement of inheriting Chinese excellent national culture and carry forward the fine traditions of the people's justice. In Chinese traditional culture, has long formed a profound sense of solving disputes, leaving many solutions and win-win in the dispute of anecdotes.

2, mediation is an important content of the socialist rule of law.

Mediation is not solve the case much less pressure in a matter of expediency, but a perfect development of rule of law, the case quantity increased, the types of cases increased, complex legal relationship and conflict of interest, the more attention should be paid to the use of mediation system to resolve disputes, and properly regulate all kinds of legal relations, balance the different interests of the law; comparison of the regulations and perfect legal system, more and more perfect, more should pay attention to implementation of laws and regulations, perform well, make good use of the use of mediation system of laws and regulations, give full play to the social control function. The mediation system into the construction of legal system modernization, to realize the mediation keep pace with the times in the development of the legal system.

3, mediation is to give full play to Chinese socialist judicial system advantages, most valuable experience to promote the continuous development of the work of the court.

Mediation can be unified leadership in the party organizations, to mobilize various local, various departments, various industries and all aspects of strength, active participation, mutual cooperation, mutual resolve social conflicts and disputes, to form a joint force to resolve social contradictions and disputes; to scientific and effective allocation of social resources, to solve the social contradictions and disputes, the most urgent need solve; to coordinate law enforcement, judicial authorities and relevant departments, centralized treatment of contradictions and disputes are the most prominent social management and development; to mobilize the masses, rely firmly on the masses, the masses of the people autonomy organization to resolve contradictions and disputes.

4, mediation is an important way to give full play to the function of people's court.

Direct functions of the people's court is fair, efficient judicial, executive court proceedings to the various disputes, support, guidance to other social organizations to resolve social contradictions in the bud. The proper use of mediation to fundamentally solve the difficult, difficult and appeal proceedings implementation of difficult issues, make sure to close the case, maintaining social harmony and stability, to achieve fairness and justice of society as a whole. The people's court to fulfill these functions, can not fight a lone battle, monologue, also can't judge a hard, must through the construction of Chinese socialist mediation system this ambitious project, the joint efforts of the whole society to resolve disputes chorus, realizes the referee and mediation hands hard.

5, mediation is an important way to maintain social harmony and stability for a long time.

General Secretary Hu Jintao pointed out that: "development is the hard truth, is the first priority; stability is a hard task, is the first responsibility." At present our country is in an important period of social transition, economic development is the golden opportunity period, is the period of high social contradiction. Therefore, give full play to the role of mediation in the unique advantages and important role in promoting social harmony and stability, safeguard social harmony and stability in development, the harmony and stability in development appears especially important.

In short, mediation is a kind of high quality trial, mediation work, can realize the organic unity of contradictions and resolve to protect the interests of rights, respect the dominant position of the parties to achieve the organic unity and the maintenance of the rule of law authority, realize the organic unification of convenient and flexible and strict procedure, realize the organic unification of legal effect and social effect of law. This is fully consistent with the spirit of modern rule of law and judicial requirements.

Two, voluntary legal lawsuit mediation system:

Litigation mediation, also known as the court mediation, refers to the civil proceedings the parties in managed and coordinated by the judges, consultations, the case controversial entity rights and obligations agreed to resolve disputes, activities. The court mediation is a civil lawsuit system in our civil procedure law to determine the action, it is one of the parties, is the people's court to resolve disputes, occupies an important position in China's civil litigation system, judicial practice courts have remained closed to mediate high rate, fully demonstrated the superiority of mediation system compared with the trial, also proved its value of existence.

1, voluntary, legal lawsuit mediation system definition.

According to China's "civil" provisions and explanations, voluntary, legal litigation mediation is a basic principle in our civil litigation, the principle mainly includes several aspects: first, the people's courts, to mediation cases, should use the mediation settlement. (but not mechanical, if not the mediation, using special procedure cases, confirm the effective or ineffective cases and so on.) Second, voluntary and lawful mediation must follow two principles. (it must be emphasized that "voluntary") that the parties must voluntarily for mediation, the mediation agreement reached between the parties as well as the content must be for the people's court shall not force the parties voluntarily, take the mediation or the mediation agreement is reached. "The agreement concluded between the parties legitimate" that must be lawful, and a people's court conducts conciliation process must strictly follow the procedures and principles of law. Third, the whole process of mediation to litigation, at any stage of the proceedings, whether it is the first instance stage or the second stage, whether it is prepared to trial before the court, or the stage, even after the court. Can mediate. (can for example, before the court, the court after the divorce, He Yuhong) fourth, mediation and judgment, is a way to resolve civil cases in the people's court. Cases can mediate conciliation, mediation or conciliation is not invalid cases, shall timely decision, should not be long tune determines, to correctly handle the relationship between mediation and judgment.

2The court mediation system, the necessity of existence.

(1) the relative lack of mediation can alleviate cases increased sharply and the courts power. In recent years, all levels of court accepted civil. Economic disputes has been a huge increase in the potential, and the court are relatively insufficient, which makes the case investigators less contradiction. (Jiashan court, civil lines investigators only Increase in cases, and   ) in order to alleviate this contradiction, the court will choose mediation this time and labor saving, high efficiency of the case, especially through mediation, can make the most of the cases of first instance in, thus greatly reducing the second pressure.

(2) judges tend to use mediation way. Compared to the lawsuit, mediation may at least have three benefits. First, mediation can make judges do more cases in the same time, relative to the judgment, mediation is usually a labor-saving and efficient handling of the way, the judgment must be strictly in accordance with the procedure, the time will be more flexible, and mediation in the procedure, the time is relatively small, the legal document is relatively simple. Secondly, the mediation can make judges avoidance to make the difficult decision. In the trial practice, often appear some pending cases lack of corresponding legal norms adjustment, that is to say the loophole, and the judge in the judgment according to law and must be in the decision to fully explain the legal reasons. Countries are generally made by court of law interpretation method to get rid of the dilemma. However, it is not easy to make compared, legal interpretation right under the mediation, safe and labor-saving, because the law does not require the court to explain the legal basis used in the letter of mediation. Again, for judge, risk adjusted than the much smaller decision commitment. Decision not only slow, long cycle, time-consuming and laborious, but also is likely to lead to a party or parties may appeal, there may be changed or remand, it means that the judge should bear considerable risks. While the regulation does not exist such problems, the party applying retrial cases rarely, therefore, relative and judgment, mediation is a risk very little in the way of handling cases, truly end the case, to avoid unnecessary letters.

(3) the majority of the parties to reach a mediation agreement. The court mediation success in the final analysis requires the consent of both parties to reach a mediation agreement. The parties agree that a lot of mediation, one is because the laws, policies on the lawsuits are not very clear or contract is not perfect, not clear, to this kind of case is not clear, the parties have no grasp of the win, which would give up some ideas, to reach a compromise of the mediation agreement. Of course there are quite a few cases have good reasons for the plaintiff in the clear facts and law, completely win the case accept mediation. Because the plaintiff in this case to give up part of the right to reach a mediation agreement with the defendant's mainly the following aspects: first, the judge again and again; two is the fear of judgment cannot be executed; the three is for relaxation or maintain the original account.

(4) is suitable the mediation to decide the nature of our society. China is a "human society". The neighborhood nostalgia is very strong, especially in rural areas is more prominent. In the countryside, the village is a big family, a lot of places several Village neighborhood very close contacts, get along very harmonious. In this case, the dispute between neighbors, the parties maintain a friendly neighborhood relations considerations, they are more willing to resolve the dispute through mediation. So the mediation becomes the case basic courts at the grassroots level, so as to promote the legal construction process, but also contribute to the establishment of a harmonious society.

3, the court mediation system defects

The necessity, although the court mediation system has its existence. However, with the establishment and improvement of socialist market economic system, with the implementation of the reform of civil trial court, the court mediation system in practice exposed some problems and defects.

(1) contrary to the voluntary principle in the judicial practice, the parties will not fully guarantee. The voluntary principle is the provisions of the civil procedure law court mediation should follow the code of conduct, the specific requirements of this principle is: whether to resolving the disputes by mediation, the parties shall choose decision; in the process of mediation, mediation is requested to continue, depends entirely on the parties, if the parties do not want mediation, the mediation shall be terminated immediately the mediation agreement; whether, should respect the will of the parties, shall not be forced or in disguised form to force the parties for mediation. In judicial practice, the judge based on the consideration of draw on the advantages and avoid disadvantages, in handling the case is the inevitable choice of mediation, even if the parties are unwilling to mediation, but when the judge for mediation to judge the identity, the mediation opinion has great mental pressure on the parties, the parties will worry refused to judge mediation may bring adverse verdict give yourself, was forced to accept the principle of voluntary, so in the judicial practice and weakening deformation.

(2) to ascertain the facts, to distinguish between right and wrong for the court mediation should be a basic principle of compliance is biased. Due to the dispute mediation is the parties agree on the basis, the facts are clear, it is not clear the lawsuit mechanism and consensual dispute resolution is not consistent. Mediation may be desirable disposition of the parties, mediation agreement parties voluntarily to dispose of their legitimate rights and interests of the parties, mediation itself includes mutual understanding and mutual accommodation not ascertain the facts, ambiguous responsibility for certain, so as to achieve the rapid and peaceful settlement of disputes, as long as the parties to make concessions, even the fact that there is no clear, responsibility no clear, still can agree that the dispute was settled. If will ascertain the facts, to distinguish between right and wrong as mediation principles, emphasizing that all cases must be factual, responsibility to distinguish between, so as the direct judgment to economic, quick, and parties at this time has been difficult to make concessions on substantive rights, the possibility for regulating solution will dispute is very small. Therefore, this principle killed the inherent attribute of mediation, inhibited the use of regulating function.

(3) the court mediation applicable scope is not clear. Civil procedure is just the principle provision of the people's court shall carry out mediation, on a voluntary and lawful basis. The whole process of mediation applicable to litigation, including the first trial, second instance and retrial, belong to range. In the scope of application, in addition to the supervising procedure, especially the procedure of public summons procedures, and the procedure for trial supervision, all involved in the civil rights cases and cases involving economic disputes can apply mediation, are too wide range.

(4) mediation sign before the parties may go, in accordance with the general principles of the civil law of contradiction. The general principles of the civil law fifty-seventh stipulation: "the civil legal act from the inception of the legally binding behavior, non prescribed by law or the consent of the other party, and shall not unilaterally modify or rescind." But the law of ninety-first states: "if no agreement is reached through conciliation or mediation before one party goes back on his word, the people's court shall." According to this provision, a party in the lawsuit mediation agreement is not binding on the parties, in the mediation before any party can go, in the mediation, either party may refuse to sign and does not need any reason. The provisions of the general principles of the civil law is not consistent, not only play the role of lawsuit mediation system have the adverse effect, also has the principle of honesty and credit conditions against the market economy, but also undermine the authority and stability of the court mediation agreement.

Three, the court mediation (mediation)

The court mediation (mediation) refers to the people's mediation committee in accordance with national laws, policies and social ethics, through patient and meticulous job of persuasion and education, encourage the parties to reach an agreement, mutual understanding and mutual accommodation, working principle of solving disputes. The court mediation in our "Civil Procedure Law" in the provisions, but part of it is not civil litigation, but also has the close relation with the civil litigation, mediation is a line of defense in civil litigation, some civil disputes by the people's Mediation Committee for mediation, will not resolve through litigation. The court mediation is the original judicial work, original rely on people's mediation organization to resolve disputes, but also in China, which by some western scholars known as the "Oriental experience", "Oriental flower". According to statistics the Ministry of justice in our country, the people's mediation and the court civil trial case and the ratio of 14:1, namely the mediation of 14 pieces, 1 pieces of litigation, now this ratio has generally declined to 1:1, namely the mediation of 1 pieces, 1 piece suit. This situation shows that: one is outside the lawsuit mediation litigation mediation is an irreplaceable role, two is a big lawsuit mediation at the present stage development potential. In the new historical conditions, how to strengthen the people's mediation work guidance, how the mediator selection, training and mediation work norms, how to better play the court mediation in resolving social contradictions and disputes in the first line of the role, is the people's courts and judicial administrative organs should carefully study the new situation the subject.

Talk about three aspects.

1, the court mediation and court mediation has the distinction. One is the people's Mediation Program, must not litigation. After the civil dispute, the parties choose to solve people's mediation, must be voluntary, must respect the litigation rights of the parties. Two is the provisions of the Civil Procedure Law of the government and the people's court for guidance to the people's mediation work obligations, the people's courts and judicial administrative organs should strengthen the people's mediation work guidance, according to the provisions of the Civil Procedure Law Article sixteenth, the court mediation organization -- the people's mediation committee for mediation by the people's Court of the people's guidance; mediation committee for mediation of civil disputes, if there is a violation of the law, the people's court has the right to correct. (for example: the people's mediation in violation of the law, to support the case will not included in the daughter)

Reason 2, development of the court mediation system.

The theoretical basis of litigation mediation is the principle of party autonomy and the principle of disposition, therefore actively carry out the work does not exist in theory, in practice to digest a large number of social contradictions, broad space for development. In particular, the development of the court mediation has the following reasons.

(1) to improve the effect of market efficiency. Although the costs of mediation, but lawsuits, spend much less. Litigation often repeated several times, several years not to decide, is not conducive to commercial activities, "low cost" time is money "the eternal rules and mediation, is the market impetus of development of mediation work.

(2) the relatively flexible mode of operation. Because the court mediation agreement is that both parties agreed on an equal and voluntary basis, it not only considered to comply with the provisions of the law, but also consider other factors outside of the law (such as human), especially the factors to consider the future development of the settlement, is a mutual understanding and mutual accommodation forward looking, and the parties can predict his results. But litigation is to consider the facts and applicable law, flexibility of small, difficult to predict the outcome of both parties.

(3) society harmony, litigation mediation can make both parties maintain harmonious relations, especially for partners, between neighbors, even more so. While the action is often torn face, complicate things, is not conducive to live together in peace together between the members of society. Harmony is the principle China tradition thought, society has given great support.

(4) reduce the burden on the court request. The more developed market economy, communication is more complex, more conflicts and disputes. Especially the rapid development of economy and the mode of production socialization, the contradictions and disputes increase, a heavy burden to the court. The best way to solve the burden of the court, is the development of the court mediation, Split case, put a lot of dispute resolution in litigation, the court the burden is lightened in nature.

3, docking litigation and conciliation problem. Slightly. (author: Huang Zhen)