The docking litigation and conciliation system in civil action

 

Abstract:With the continuous development of our economy, social value orientation and the pattern of interests diversification trend, all kinds of contradictions, led to litigation single civil dispute settlement mode has been unable to meet the demands of modern society. Although China has a "Oriental experience" of the mediation system, but they both in the procedure, validity, authority, executive, or in the choice of the parties have a difference. With a large number of civil disputes into the court, the formation of the backlog of cases, disputes this, making civil rights can not timely maintenance, damage can not be timely relief. To establish a diversified dispute settlement mechanism to solve this problem is the best choice.

This paper firstly discusses the connotation, nature and characteristics of civil litigation mediation docking mechanism; secondly discusses the theoretical basis and background of the civil litigation mediation docking mechanism; and the feasibility from the positive effect of docking mechanism our country lawsuit, and the rationality of litigation and mediation mechanism in three aspects of civil lawsuit mediation mechanism; analyses and discusses the operation status of China's civil litigation and mediation mechanism and existing problems; finally, by reflecting on the question of civil litigation and mediation mechanism, put forward the civil litigation and mediation mechanism in legislation and system construction proposal on.

 

Key word.Diversity of dispute solution mechanism; docking litigation and conciliation; feasibility; thinking

 

Introduction

   In recent years, with the development of economy, more and more social main values, social interests diversified development trend, China's civil litigation cases increased, is gradually showing a western country experience"The litigation explosion"Facing the situation, the pressure of the court is hitherto unknown, our existing mainly in the way of litigation to resolve disputes of the model has been unable to meet the needs of the community. In judicial final principle under the concept of the state, justice is the final way to resolve disputes, all the disputes into court, resolved by litigation, there is no doubt that the issue is the current dispute settlement mechanism can not solve the. Therefore, to establish a diversified dispute settlement mechanism, give full play to the advantages of diversified dispute settlement mechanism, is the best choice to resolve this difficult situation, but also achieve the optimal pipeline of social fairness and justice.

    A civil litigation and mediation mechanism, overview

(a) the connotation of civil lawsuit adjustable docking mechanism

Docking litigation and conciliation of the term, there is no clear concept in our legal norms, the judicial departments in the trial and summary experience, is one of the major achievements of the people's court to explore the diversification of the dispute settlement mechanism; even there is no unified definition in the theory about the concept of litigation and mediation. Therefore, in the theory circle and practice circle, the concept about the docking mechanism of civil litigation mediation has a different point of view. Various theories mainly has the following three kinds of views:

The first point is, litigation and mediation refers to the joint court mediation and people's mediation.^[1]Litigation mediation refers to the court's mediation, including litigation and litigation mediation, docking between proceedings, litigation mediation and people's mediation between the three, this view is called the concept of civil litigation and mediation mechanism of generalized.

To agree with this view has the following main reasons: first, the lawsuit mediation and people's mediation is the connection between the three proceedings, litigation mediation and people's mediation, the docking mechanism in conformity with the diversification of China's dispute settlement mechanism is explored; second, docking litigation mediation and people's mediation, is conducive to give full play to the unique advantages, they can realize resource, information and mutual complement other achievements, it is of great significance to maximize the integration and utilization of resource and non litigation resources; third, with the development of society, the diversification of social interests, social values have changed dramatically, people's awareness of the rule of law, litigation idea has been greatly improved, litigation cases increased, the diversified dispute resolving mechanism conducive to great action to ease the pressure facing our country court litigation explosion brought about by the social dispute, improve the efficiency of.

The second view is, litigation and mediation refers to the procedure and the people's mediation, administrative mediation and other dispute lawsuit mediation and interaction process in organic docking solution mechanism.^[2]This refers to the mechanism, a civil case is transfer between litigation and non litigation procedures, to solve disputes and safeguard the legitimate rights and interests of the. This procedure does not include mediation, this view is called a narrow concept.

Hold this view believe that, in our current trial is by way of mediation as the dominant mode of trial, at present in our country the development of rule of law is still not perfect, people's concept of the rule of law is not very high background to emphasize the mediation, will not be conducive to our construction of rule of law, the implementation of China's rule of law and justice independent caused some impact, therefore, the litigation mediation and people's mediation mechanism should support cautious attitude, so that it can help improve people's legal concepts and consciousness.

The third view is that, the government actively encourage and promote the development of people's mediation specialization. In fact, people's mediation system is the path of specialization, the professional performance for the establishment of specialized people mediation committees at all levels of government, the dynamic instability of the mediation committee duties is to grasp at all levels of administrative areas and disputes, and to assist with the mediation committee to carry out the work, this view is called dominant docking mechanism civil lawsuit for the government.^[3]

This view is widely used in solving the disputes in our country, the establishment of the mediation organization in the village is a traditional Chinese mediation practice. But the partial administrative mediation, the author does not agree with, on the one hand, China 's dimension stability for the mediation mechanism it is self-evident, governments at all levels in order to maintain stability and mandatory mediation or suppress the parties, this approach is really violated when the right people, largely for the independence of the judiciary there are obvious intervention; on the other hand, the author thinks that the civil litigation and mediation mechanism led by the government and the present theory circle and practice circle mainstream practice in conflict, rule by law society, the diversification of the dispute settlement mechanism of justice oriented are reflected in the world, which is the trend of development the diversification of China's dispute settlement mechanism.

In the current theory and practice, the first mainstream viewpoint, this paper also agree with this view, the author thinks, the people's mediation should is a broad concept, which is on behalf of the diversified dispute settlement, in the people's mediation is the meaning. The author thinks that the concept of our country's civil litigation and mediation mechanism should be mutually docking procedure, litigation mediation and people's mediation many kinds of mediation, which is more consistent with the actual situation in china. The current situation in China is facing, increasing social contradictions, social conflicts intensified, the influx of large numbers of court cases, social disputes cannot be solved quickly, this not only caused a court trial pressure, but also make the court's work efficiency greatly reduced, quality of the trial of cases are not guaranteed. Therefore, only rely on the limited judicial resources of our country, can not solve this situation, whether it is from the realization of justice, or to resolve disputes, maintaining the legitimate rights and interests of docking mechanism, litigation mediation and people's mediation of the diversification of the dispute settlement mechanism is the best choice.

In conclusion, the author thinks, docking mechanism of civil litigation mediation refers to the lawsuit mediation system (including the trial) connect with people's mediation system, the people's court will be part of the non litigation disputes resolution to solve the case distribution to various non litigation dispute resolution mechanism to carry out mediation, litigation and non litigation dispute solve organic docking mode, give full play to the advantages of multiple dispute resolution mechanism, a system of joint efficient in solving the social disputes.

 

 

 

(two) the nature and characteristics of the civil lawsuit of docking mechanism

1The nature of civil litigation, docking mechanism regulating

Property refers to the fundamental attribute distinction has things to other things, namely, the essence of things. The nature of litigation and mediation in this paper is compared with litigation, non litigation mediation to resolve disputes way. In solving civil disputes, through the comparison between the two, the author found that docking mechanism of civil litigation mediation has its own special character.

(1Docking mechanism of civil lawsuit mediation) is a quasi judicial procedure

Docking mechanism of civil lawsuit settlement mechanism based on mutual make up for its shortcomings and set up in the trial, litigation mediation, people's mediation and other dispute. The nature of litigation and mediation mechanism is of course as quasi judicial.

First, compared with the traditional mediation system in our country, it has the character of justice. Because the court and non litigation dispute resolution mechanism has many aspects, one is instruction, training and supervision responsibilities for non litigation mediation mechanism; two is the civil litigation and mediation mechanism and judicial procedure has the contact, such as judicial confirmation of responsibility to solve mechanism results of the non litigation disputes, the non litigation mediation mechanism a mechanism as the pre procedure, mediation mechanism and litigation before, exists in our country mandatory pre-trial mediation of this mechanism, the family and marriage cases, small claims cases, neighborhood disputes in court before must first carry out mediation.

Secondly, with respect to our country lawsuit, which has properties of non judicial. One is because of China's non litigation mediation mechanism is built on both sides on the basis of consensus when people, is a concrete manifestation of the party's right of disposition, and the trial procedure of the court is strictly in accordance with China's laws and regulations; two is because the litigation documents with the entry into force of nature is final, legal documents while the non litigation dispute resolution mechanism in addition to special provisions, are generally not enforceable.

(2The civil lawsuit) docking mechanism reflects the litigation and non litigation fusion

From the docking litigation and conciliation concept analysis, the author thinks, the docking between the docking mechanism of civil litigation and non litigation regulation is.

From the Supreme People's court2009Years7Released "the Supreme People's Court on a number of opinions" to establish and perfect the contradictions and disputes, litigation and non litigation settlement mechanism relative connection can be seen in the docking mechanism, civil litigation mediation"V."Refers to the people's court to exercise jurisdiction, jurisdiction over the proceedings, but also to the people's court led mediation, litigation mediation in our country, is the main way of our country at present case, is an important lawsuit system of our country. Docking litigation and conciliation"Adjustable"It mainly refers to the non litigation mediation, people's mediation, administrative mediation, the mediation, conciliation system. Non litigation dispute settlement of social disputes is in out of litigation procedure, the seriousness of no litigation procedure, confrontation and litigation judgment of binding and enforceable, therefore has the non litigation, litigation mediation (including the trial) is made after the case in court in the procedure is performed within the a lawsuit. The circulation of civil disputes between the two, the two complement each other, mutual fusion.

(3The civil lawsuit) docking mechanism is autonomous distinctive

Non litigation dispute solution mechanism is more and more popular, it is not only the non litigation dispute solution mechanism plays an important role in avoiding the disadvantage of proceedings outside, more important is its autonomy, the autonomy in accordance with the development trend of modern society; the concept of autonomy, to solve to mobilize the initiative of parties in the process of the dispute, the dispute settlement by the parties themselves play a leading role in the process, advocate the autonomy of parties and will assist with the dispute settlement consultations spirit.^[4]Autonomous docking mechanism of civil litigation mediation should be reflected in two aspects:

Embodiment of autonomy in the non litigation mediation organization first of all aspects of. "People's Mediation Law" provisions of article seventh"The people's mediation committee is established according to law, mediation organizations of the masses". This stipulation not only provides the autonomous nature of people's mediation organization, also reflected this kind of organization is the benefit of solving civil disputes;

The second reflected in the choice of dispute solution way and are willing to reach a mediation agreement on the autonomy of both. In the civil litigation mediation docking mechanism, non litigation dispute solution mechanism in the characteristics of voluntary, flexibility, efficiency, given the possibility of Party autonomy. It emphasizes the autonomy and the communication between the parties concerned, only when the parties to the dispute settlement mechanism that their interests to make a choice. Not only embodies the autonomy in the choice of settling disputes, which have the right to choose procedure, but also embodied in the choice to solve the problem on the basis, the parties can choose the legal norms of our current but also from the village, industry standards, local customs, as a basis for dispute resolution. Integration and complementarity between the two docking mechanism of civil judicial lawsuit adjustable autonomy and civil litigation and mediation mechanism, conforms to the interests of the parties.

2The characteristics of civil litigation, docking mechanism regulating

(1Judicial Leadership)

Docking litigation and conciliation mechanism of this judicial leading type has been implemented widely throughout the. Hunan Changsha Yuelu District court actively promote this kind of pattern, the establishment of the people's mediation room in the inside of the court case, for some relatively simple, the less controversial and both parties in the civil case dispute an area of mediation before litigation guide; the establishment of the people's mediation room in the police station, by the public security guide the parties to choose mediation, the people's mediation on the part of the light injury, public security case, practice the people's mediation system as the basis, the people's mediation, administrative mediation, court mediation between the linkage of the dispute settlement mechanism.^[5]

The implementation of the Putian court in Fujian"Judicial dominated under the leadership of the Party committee"The diversification of the dispute settlement mechanism, the court plays an active role in the creation and implementation of mechanisms in the process of.^[6]The people's courts at all levels take the initiative to integrate into the far mediation bridging mechanism, increase the mediation committee work guidance, actively support the people's mediation organization to participate in the lawsuit before mediation, administrative mediation agreement shall confirm the legal mediation, serve the people, safeguard the solemnity of people's mediation, administrative mediation work, promote the diversified development of various non litigation dispute resolution mechanism.^[7]

Whether the specific operation mechanism from the theory of civil litigation mediation docking mechanism or from the practice in the practice of civil litigation mediation, docking mechanism is based on the court as the dominant. In the principle of judicial final we can understand that, in the non litigation mediation of civil disputes in the end could not be resolved when finally returned to the court, is the dispute finally settled in court, the court to resolve the contradictions have the final review power, jurisdiction, and enforcement.^[8]In view of the above, we can see that the civil lawsuit, docking mechanism is to justice as the center of the diversified dispute settlement mechanism, only the promotion in this premise and guarantee the implementation of non litigation dispute resolution mechanism. Therefore, the court shall be fully aware of the docking mechanism of civil regulation, operation of docking mechanism of civil lawsuit court to give proper guidance, supervision function. The court's guidance, supervision mode is mainly embodied in the judicial review of the functions and effectiveness of the mediation agreement on two aspects. Play the leading role in the civil litigation mediation docking mechanism in the court, can give full play to the docking mechanism regulating function of the civil lawsuit, overcome the shortage of judicial resources, the number of cases growing contradiction, improve judicial quality, at the same time for the realization of equity and justice, maintain social order and is of great significance in improving the non litigation mediation.

(2The diversification of civil litigation) docking mechanism regulating

The diversification of the dispute settlement mechanism has a long history in our country, civil litigation mediation docking mechanism in learning from foreign judicialADRBased on the experience and the formation of local resources, specifically manifested in two aspects as follows:

First, the diversification of civil litigation and mediation mechanism operation mode. In the civil litigation and mediation mechanism only to the court as the dominant mode of operation, there are many docking, the pre litigation mediation, conciliation, mediation is the typical delegate assistance.

The pre litigation mediation refers to enter the proceedings in the social disputes before, by the people's court to be part of the non litigation disputes resolution to solve the social disputes by mediation organization to mediate. The Civil Procedure Law of China stipulates that the 122nd, the prosecution to the people's court for civil disputes, mediation, conciliation, the parties to the mediation except. Here includes two aspects. One of them is the our country civil procedure mediation cases, is in some simple civil cases in civil procedure of our country before the trial to mediation, the mediation fails again into the procedure to resolve disputes. Such as family disputes, inheritance disputes, labor contract disputes, traffic accidents caused by the relationship of rights and obligations clear damage compensate dispute, homestead and adjacent relations disputes, the partnership agreement disputes, litigation subject is small disputes. Such as the second aspects is the number of cases is relatively simple, relatively little dispute case, the court before, leading to non litigation dispute resolution mechanism for publicity, agreed by the parties to the mediation of disputes, if not solve the disputes and litigation. The pre litigation mediation mechanism in the non litigation dispute resolution plays an important role in the pretrial mediation mechanism, good results have been obtained in the courts. Such as Zhejiang Hangzhou Gongshu District court to set up a people's mediation in the filed of the hall the admissibility of the window and the people's mediation room, by the Bureau of justice appointed senior people's mediators by resident, within the jurisdiction of towns, street turns to full-time mediators of mediation, the parties agreed to mediation, the mediation realized immediately, legitimate rights and interests of the parties to the most simple, fast, economic measures.^[9]Since the2005Years5On studio set up to2007Years7Month, a total of mediation of disputes269, the success of mediation129Play, in which the pre litigation mediation66, the success of mediation64The entrusting mediation in litigation203Play, successful mediation65Play.^[10]

Assist mediation refers to the people's court case, according to the case of need may invite relevant organizations or individuals to assist the people's court mediation cases. The relevant units and individuals invited shall assist the people's court conducts conciliation, should not dodge; the relevant units and individuals generally understand the case or to trust the party, they participate in the mediation, the parties to persuade, persuasion, to help solve the disputes between parties, easy to make an agreement between the.^[11]Jiangsu province through the courts to participate in mediation work includes two aspects, in the court system is mainly to strengthen and standardize the litigation mediation, mediation and judgment that "combination", the "docking litigation and Conciliation" between the court and society, implemented by the entrusting mediation mediation and assistance.^[12]2006Parts of Jiangsu province court entrusted mediation or the mediation organization to mediate the invitation case3190One, the mediation of2260One, the mediation rate70.8%.^[13]

The entrusting mediation refers to with the consent of both parties, the relevant persons or organizations authorized by the people's court mediation, dispute resolution system to smooth. The entrusting mediation can be divided into pre litigation mediation mediation, litigation commissioned. The entrusting mediation and different patterns of various concrete in the actual operation process, mainly the mediator mediate commissioned commissioned appointment, related organization mediation and entrusted with the parties have specific organizations or individuals for mediation. Shanghai Higher People's court and the Judicial Bureau jointly issued the minutes of the meeting to strengthen the mediation work, proposed to explore the "litigation mediation work to adapt to the new mode of" Socialization in the judge LED; according to the provisions of the two jointly issued the scope, the entrusting mediation include divorce disputes, the general contract disputes, damage compensation disputes, property disputes, etc.8Types, greatly expanding the scope of mediation; opinion also clear the civil litigation procedure before trial, trial, the trial after the whole process of the Commission, to maximize the people's mediation effect.^[14]Shanghai city since2006Since the promotion of civil dispute mediation, cutoff2011At the end of the year, all accepted mediation cases33.5Million, and the number of cases accepted mediation success rate increased year by year, the district court to reduce the average amount of30%, mediation agreement rate100%.^[15]

The diversification of the dispute mediation, conciliation and lawsuit mediation mechanism in solving mechanism.

Secondly, the civil litigation mediation docking mechanism is the integration of diversified dispute resolution. Docking mechanism of civil lawsuit is litigation proceedings, litigation mediation, people's mediation, administrative mediation, mediation and other dispute resolution mechanism industry directly docking mechanism to solve the problem. For example, docking litigation and mediation, the case can be resolved through mediation before the case was transferred to the mediation committee for mediation, and then transferred to the proceedings in not mediation; confirm the validity and the mediation agreement, according to the "Civil Procedure Law" in article 194th, the parties to the mediation agreement can be proposed confirmation application to the people's court, the people's court for confirmation of the mediation effect people's court confirmation procedures in accordance with the mediation agreement. The diversified dispute settlement mechanism provides the option for the parties, all has the positive significance for the settlement of disputes and the stability of the society.

 

 

The theoretical basis and background of docking mechanism, the two civil action

(a) the theoretical basis of civil litigation mediation of docking mechanism                                                                          

1On the theoretical basis, docking mechanism of civil lawsuit in China

There is a certain theoretical basis is a necessary prerequisite for the establishment of the theory, implementation of China's civil litigation and mediation mechanism has its theoretical foundation of social practice.

(1The concept of diversified disputes solving mechanism)

Theoretical study on the diversification of the dispute settlement mechanism in China is very rich, the diversification of the dispute settlement mechanism refers to different social disputes resolution, with its unique function and operating mechanism of coordinated and complementary mechanism of social subject to meet different needs. The so-called diversification is relative to the single character, its meaning is to avoid disputes simply placed a program, such as litigation, and the absolute; advocated the diversification of social value and method as the basic idea, do not rule out the various from the folk spontaneous or organized strength in disputes resolution in action.^[16]

Professor Ji Weidong in the "mediation system legal development mechanism" in one article, from the point of view of modern political and legal point of view, the process of mediation phenomenon in modern rule of law in China is analyzed, and the relationship between the trial and mediation are reviewed, in order to investigate the stability, in the settlement of social disputes. Continuity and relevance.

This view of Professor Ji Weidong in the civil litigation mediation docking mechanism mainly embodied in program order value, order value of program is a program of appearance, the appearance of value is the realization of civil procedure purpose means or tool. Program order value of peace and stability, peace is the solution to the parties dispute and the restoration of relations between the two sides, damage the social relations can be restored or reduction; stability is shown as the actual effect of dispute resolution, stability and order is the ultimate goal, to solve the dispute to achieve it, and from the bondage of to determine the value of civil litigation docking mechanism regulating the order value performance for its stability, for the social rules, process continuity and actual results.^[17]Civil litigation mediation docking mechanism, through mediation and other non litigation dispute resolution without destroying the existing relationship between the parties to resolve disputes, which is beneficial to the social order and peace and tranquility, timely repair of social relations.

Research professor Fan Yu diversified dispute settlement mechanism for domestic and international the most Xiangzhi, she thought, in the diversification of the dispute settlement mechanism, through the mediation of its characteristics, in the dispute settlement to share the pressure and the replacement of the trial system to remedy defects and rectify errors, used, thereby reducing the social dispute resolution in terms of cost and the price, more timely and effective adjustment of interpersonal relationship and social relationship.^[18]Fan Yu's research results quite abundant, the diversification of the dispute settlement mechanism--The basic structure and basic principle, value of litigation and non litigation dispute resolution mechanism is analyzed, and the diversified dispute settlement mechanism of China's existing problems will be analyzed, to construct and improve the diversification of China's dispute settlement mechanism and put forward constructive suggestions.

Professor Fan Yu's views on civil litigation mediation docking mechanism embodies procedural benefits value. Procedural benefit performance for the program efficiency and effectiveness, efficiency and value from the implementation procedures, reduce litigation costs, reduce litigation costs and legal fees, shorten the cycle, simplify procedure. From the perspective of improving the efficiency of litigation, as far as possible, use the limited action space to solve a dispute.^[19]In the civil litigation mediation docking mechanism, non litigation mediation and the trial compared, it has a very favorable advantages in terms of cost. Non litigation mediation mechanism, cost is in accordance with the litigation costs by half to collect, such as "the second Zhongshan City People's court Xiaolan Town, Nantou Town People's Government docking litigation and conciliation measures (Trial)" provisions, for the costs of litigation mediation of successful case of civil court only to receive half of the parties.^[20]Litigation period in mediation, mediation period is far less than the lawsuit cycle, "the Jiangsu Provincial Higher People's Court on a number of opinions" pre-trial mediation of the provisions of article seventh, the pre litigation mediation period from the parties agree to calculate the pre litigation mediation date, usually20Date of expiration; mediation, a mediation agreement is not reached, the consent of the party concerned, can be extended10Day.^[21]Civil cases accepted general during6Months, namely the trial period is the mediation period6Times. Even if the mediation mechanism in the social benefits and social benefits than litigation social benefits, in the traditional society, mediation not only solve the civil dispute and the parties do not have very big loss, on the contrary, the trial although to a certain extent, maximize the realization of the interests of the parties, but it causes the loss is irreparable.

Professor Jiang Wei think, any one dispute settlement mechanism can not adapt to the diversity of social demands, building a diversified dispute settlement mechanism to litigation, litigation mediation, people's mediation, arbitration and mediation, administrative mediation, conciliation and other dispute resolution mechanisms together, can solve various complicated social contradictions. If the dispute cannot be solved may lead to the intensification of contradictions, is likely to make the civil case into criminal cases, and may be members of affected parties, and even lead to social unrest.^[22]

The views of Professor Jiang Wei is mainly procedural justice. The procedure justice value docking mechanism of civil lawsuit is in the process of solving civil disputes, to achieve fairness and justice, may not have favoritism. The procedure justice value mainly includes the equality of litigant, neutrality of judges, program maintenance value. The equality of litigant means the parties enjoy equal rights in the civil lawsuit of docking mechanism, which not only has the equal status in the party, but is also reflected in the applicable legal equality. The neutrality of the judge is refers to, in the process of solving civil disputes, and disputes the fact that the judge should it doesn't matter of interests, in the process of dispute resolution should not have any bias. Program maintenance is that once the civil dispute reached a settlement agreement or the court made a judgment, the parties and the third person should maintain its effectiveness, can not change, which is conducive to maintaining the authority of justice and stability.

To have the important meaning of another chapter of Professor Wu, Professor Tang Weijian and many other scholars for the diversification of the dispute settlement.

According to the analysis of the above point of view, the author thinks that the value of civil litigation mediation docking mechanism shown, is the fundamental reason for its existence. In our country the order value is the most prominent, at present our country is in the reform period of social transformation, various social contradictions, social stability and order is being challenged, diversified dispute values shown in this context; benefit value is in fair value basis in solving the social justice, in case the lack of current the social disputes in China, is the main reason why the social group events, so in the pursuit of benefits, attention should be paid to achieve individual justice. Docking mechanism of civil lawsuit value lies in solving the social disputes is realized based on the balance of value.

Civil litigation mediation docking mechanism is a combination of a new dispute mediation proceedings and non litigation mediation mechanism to resolve the complexity, it is combined with the diversity of social contradictions and conflicts of interest, active exploration and innovation, in order to give full play to the function of people's mediation to resolve social disputes, in such a situation of docking mechanism emerge as the times require.

(2The legislative and judicial policy) policy docking mechanism of civil lawsuit

The guiding ideology of legislation in our country, influence of the party's policy and social policy on its produce is play a decisive role, and the legislation of our country is a combination of traditional folk and national legislation. Docking mechanism of civil litigation mediation is a kind of judicial policy legislation and implementation of the proposed legislation. The ruling party's policy for the formulation and implementation of laws can have an important impact, its influence degree directly depends on the social political system and political situation. In our socialist country, the policies of the Communist Party and social policy are two kinds of social adjustment mechanism, policy and law is highly consistent in the class nature, the economic basis, guiding ideology, basic principles, the social goal of.^[23]Specifically, the legislation and the judicial policy of China is of great significance for litigation and mediation mechanism in our country.

Mediation mechanism diversification has been received much attention in practice, reflected in the legislation on the very cautious. Since the docking litigation and conciliation mechanism of our country legislation policy for the general performance of the judicial policy, very little about its legislative norms, in2010The promulgation of the year "of the people's Republic of China People's Mediation Law", for the people's mediation was standardized in the legislation, but not;2013Years of amendment to the civil procedure law for mediation to the confirmation of the principle stipulation. On the legislation and policy review for the limitations of the legislation, this will not repeat them.

In recent years, put forward the concept of judicial activism in the judicial field, this is one of the important judicial policy establishment of litigation and mediation mechanism in china. In the2009Years, the then president of the Supreme People's court Wang Shengjun put forward judicial activism that research in Jiangsu province. Wang think, judicial activism in China is closely around to promote economic development, maintain social stability, promote social harmony, safeguard the people's rights and requirements, service justice actively use policy considerations, the balance of interests, harmonious justice judicial way to perform judicial duties; study the active deployment, careful analysis of the situation, active response to social justice demand, improve the work, active extension trial functions, actively participate in social governance, active communication and coordination, to form a work force of active judicature; according to the requirements of economic and social development, save, advance planning, in advance, to efficient justice in the bud to resolve conflicts and disputes.^[24]This judicial policy requires that all levels of the organization in solving the social disputes, should play the initiative, in the face of pluralistic society, actively explore diversified dispute resolution mechanism, and strive to serve the community.

Our country"Big mediation"The judicial policy is the legal basis for China's implementation of litigation and mediation mechanism.2009Years7Last month the Supreme People's Court issued "the Supreme People's Court on a number of opinions" to establish and perfect the contradictions and disputes, litigation and non litigation settlement mechanism is connected, in the form of judicial interpretation for litigation and mediation mechanism to support;2010The formulation of "people's Mediation Law", for the people's mediation to be the norm in the law, the legal status of justification, for the full play of non litigation mediation organization in China appear positive effect.2012To make legally confirmed amendment to the civil procedure law effect to the mediation agreement. The current judicial policy for China to establish a litigation and mediation mechanism to encourage, promote the development of various kinds of litigation and mediation model, and achieved good social effect.

Docking mechanism of civil litigation mediation is the judicial practice in the handling of specific social disputes, according to the specific social disputes have taken a different way, the way to solve disputes in dealing with social disputes, because of the timeliness, harmony with the maximum interests of the parties and be accepted and showed great social benefits. In the civil litigation mediation docking mechanism, the judge can play individual initiative and wisdom fully, through litigation and non litigation dispute resolution mechanism play the leading role, do to solve various complicated social disputes at the same time"Case closed"To realize the unification of docking mechanism, civil litigation mediation social effect, political effect and legal effect.

Although the existing legislation and judicial policy for the relevant system has some specifications, this is a progress, but still showed some limitations.

First, for the lack of civil lawsuit mediation docking mechanism research and attention. Although the diversified dispute settlement mechanism in the development history of our country for a long time, and has a perfect implementation conditions. But from the existing legislation, we can see the advantages, lawmakers for our civil litigation and mediation mechanism of the diversified dispute settlement mechanism is not clear, even to the mediation is not in-depth study. For example, in the principle of people's Mediation Law on mediation, mediation is not a secret principle, just principle fifteen Jin Youdi stressed. However, provisions on the confidentiality principle of mediation in the foreign non litigation mediation mechanism is very clear. The civil litigation and mediation mechanism of the diversified dispute settlement mechanism, its social effects have been achieved good results in practice, but in practice this system at present is only depends on the local judiciary, and, for the study of institutional and legal norms of civil litigation mediation of docking mechanism have not been highly valued due in the judicial level.

Second, the limitations of the legislation.2010Years to develop a "people's Mediation Law" legislation, the author thinks that is limited to a single legislative thinking mode, there are many flaws in the legislation technology. This defect is embodied in the first, "people's Mediation Law" and "Civil Procedure Law" about both mediation and litigation legislation in effect, procedure, personnel and other aspects of docking, in these areas, "people's Mediation Law", "Civil Procedure Law" rarely prescribed didn't even involve these provisions. Secondly, "people's Mediation Law" in China's "Arbitration Law", "Civil Procedure Law", "administrative law and administrative procedure law" after the implementation of legislation, legislation in the people's mediation law should these laws on Mediation and other non litigation dispute resolution mechanism to conduct a comprehensive analysis and research, the relation between the docking. However, in the final legislation, we did not see the legislation to make the provisions.

2Foreign related theory, and Its Implications

A comparative study of the two or more than two things, almost on all disciplines are often used, the subject of law is no exception.^[25]Comparative study on mechanism and other similar to resolve disputes, to perfect our country are exploring diversified dispute settlement mechanism is established, the civil lawsuit mediation docking mechanism has the reference value.

(1Extraterritorial)ADRTheory

In abroad, the diversification of the dispute of civil litigation and mediation mechanism in our country is similar to the solution mechanism is mainly manifested as followsADR.20Century80Age, known as the USAADRDevelopment"The warning period", toPaul D.Carrington,Trina GrilloThe professor is represented, onADRThe former question, thinkADRThe social norms"Illegal law "; the latter thinkADRFor both parties in power asymmetry, not conducive to the weak, especiallyFissThe professor, the opposed to reconciliation in lawsuit.^[26]The Japanese scholar Kawashima Takegi from the perspective of modernism criticism mediation is a non rights disputes approach, that mediation will suppress the rights consciousness, be regarded as the traditional forces against the modernization, legalization.^[27]Reconciliation is the mass society surrender, it should not be encouraged nor shall praise......Civil litigation is an ideal system to arrange a using state power against the reality so as to make it closer to the US. The selected.^[28]

1976Years American Supreme Court Chief Justice Warren·Berg.Warren BurgerThe National Conference on judicial) widespread dissatisfaction with the organization held for the sport, the accumulation of enormous energy. The meeting called Pound Conference (famous jurist Roscoe·Pound06A famous speech years named), focus on civil litigation costs and low efficiency, has a lasting relationship in litigation, the adversarial process may not be very effective. Pound Conference for the continuation of the National Conference USA lawyers association method of solving the alternative dispute, then through the act of solving dispute. Since then"Alternative dispute resolution method"The movement has been recognized in the courts, the law school and the American in civil litigation.^[29]

(2Extraterritorial)ADRThe judicial practice enlightenment

In western countries, the multivariate dispute resolution has gone from an objection to cautious to the acceptance process. In America dispute settlement mechanism, the law by giving the judge's power, to encourage the parties to choose non litigation dispute resolution mechanism, and, through the litigation costs in the litigation process undertakes to restrict improper behavior of the parties in the litigation and mediation process. This approach greatly improves the efficiency of the mediation and conciliation of authority. At the same time American court established non litigation dispute resolution mechanism of the security system, such as the fund guarantee system, which not only improve the enthusiasm of the staff, the diversification of the dispute settlement mechanism to obtain the better social effect, which has a certain reference value for our country's civil litigation and mediation mechanism.

In the UK, the judge has the right to suspend proceedings, the judge according to the circumstances of the case and to exercise discretion, discontinuance, chosen by the parties and other non litigation dispute resolution mechanism, and through the litigation costs to encourage the parties to choose mediation to resolve disputes, so as to promote the diversification of the dispute settlement mode of development, so, on China also has the reference significance.

In Germany, mandatory pre-trial mediation is Germany's non litigation dispute resolution. The part of the mandatory mediation before litigation cases in the mediation by social organizations, play, rather than by the court to assume, at the same time in Germany's mediation system, about the effect of mediation agreement is worthy of our reference, the enforcement of the German mediation the parties agreed to allow the mediation agreement agreement on the basis of the. This is China's implementation of difficult issues has reference significance.

Japan's mediation system in China is mainly reflected in two aspects, one is the power to enforce entrust with the mediation agreement, the other one is the regulation system of separation of mediation and trial system.^[30] Japan such regulating separation system for the realization of mediation and judicial justice is constructive for instance, blending a "trial mode has the reference significance in judicial practice of our country at present".

(two) the docking mechanism of civil tone background

Whether in the traditional society or in the modern society, the non litigation mediation mechanism is more in line with the traditional view of value Chinese, currently in the citizen's legal consciousness is not high, the actual situation of the legal system is not perfect, is of positive significance to protect the rights of the parties and defect remedy procedure.

1In our country, the harmony of no litigation tradition

Confucianism is one of the most influential schools Chinese legal history, in a sense, synonymous with Confucian legal thought is China ancient legal thought.^[31]Confucianism in the"Li"Rise to the law, is the"By He Weigui"The manifestation of the idea. In our traditional society, even in modern society, mediation is still the first choice of the parties. In the folk mediation, the mediation is usually referred to as"Interest","And interest"Mainly includes the clan mediation, conciliation, mediation, and neighborhood country mediation and conciliation, guild.^[32]In the Ming Dynasty, the establishment of Shen Ming ting in the county, there are civil disputes, should first mediation in Shen Ming Ting, and then can go to trial. In the Qing Dynasty, about civil mediation and trial of more government legislation, is mainly about the folk simple civil cases, the government should refuse to first trying the civil dispute cases simple, such cases shall be first followed by in the folk mediation organization establishment, if not solve and then enter the official trial, even if its not understand the situation and pre accepted such cases should be transferred to the establishment of the mediation organization. Professor Huang Zongzhi will this trial way is called"Third field", the"Third field"Its essence is what we now call"Civil litigation mediation docking mechanism".^[33]

Non confrontational with the non litigation legal culture tradition of harmony is the social ideological foundation form to our civil litigation and mediation mechanism. Under the influence of Confucianism occupies dominant position in the China for thousands of years, people in the treatment of the social relations are"With due respect". Our traditional respect"By He Weigui"Social consciousness, but litigation is the opposite of the traditional idea, the parties on the check evidence of both parties at court is meant it"By He Weigui"Social relations destroyed, this idea conforms to China's Confucian thought in the traditional culture of law Ancient Chinese Literature Search; this makes China feudal ethics, formed China law or Chinese traditional legal culture unique to other law no ethical spirit; this kind of ethics laws and a strengthening of the patriarchal clan as the basic cell of social cohesion, maintain the survival and development of a unified multi-ethnic family of the Chinese nation.^[34]Therefore, whether individuals or the government is pushing and encourage non litigation dispute resolution mechanism, in the China"The acquaintance society"Control awareness, the parties are willing to non litigation dispute resolution mechanism to accept.

2The Grand Mediation Mechanism in our country, the traditional

The multipartite mediation mechanism in China's emergence is not accidental, it is a product of social history, that is to say, it has the characteristics of China. Thirty years of reform and opening up, China's economic development is self-evident, but the contradictions and problems arising with the economic development, we have to pay more attention to the social contradictions, permeated all aspects of performance, is a wide variety of forms, contradictions and problems or social history reason, based on or is based on policy reasons or because of the interest conflict; more important is the increasing social instability factors of group events for the government not only relates to social problems, is more of a political issue. Mediation as a solution civil dispute is very common in society,

2009Years12Month, the national political and legal work in television and telephone conference, asked the national judicial organs to firmly seize the influence society and harmonious and stable source, fundamental, basic problems, and further promote the social contradiction, law enforcement and social management innovation, impartial and honest three key work, under this background, the Central Committee for comprehensive management play a leading role, guiding the relevant department of mediation system construction work.^[35]People's mediation is a China characteristics of non litigation disputes resolution, Chinese in the village (neighborhood) committee, the township (street), enterprises and institutions as well as high contradiction industries and fields widely set up people's Mediation Committee; stop2011At the end of the year, China are mediation organization81.1Million, the mediator433.6Million.^[36]

The Grand Mediation Mechanism in China is the people's mediation, administrative mediation, mediation and other mediation integration together, the establishment of social dispute mediation center, handling disputes, resolve contradictions. It is undeniable that, the multipartite mediation mechanism in solving social disputes, resolve social contradictions, produced positive effect, to a certain extent, for the maintenance of social stability has an important role in.

3Increasing social contradictions, litigation pressure

With the development of economy, social disputes increase, accompanied with the enhanced awareness of the legal system, a large number of cases of the influx of the court, the people's court's huge pressure, as shown in the chart,2006Years to2010In case the growth rates were3.460%,11.163%,7.176%,4.305%, the case about a six percent annual growth rate, but we see that the number of judges is basically maintained at19Million, this contradiction is very prominent in the judicial system in recent years.^[37]

If the current judicial personnel in Henan province court line average less than all of the staff of the court40%,2011Henan per capita closed for more than200The judge800Many people, mainly concentrated in the civil judge body; specific to the Jianxi district court, the104Police officers, have the qualifications and only the actual trial in trial operations37People, nearly five years, the Jianxi district court hearing the case in every year5000Above, the traditional civil cases amounted to3000Pieces.^[38]

Civil litigation and mediation mechanism is complementary advantages of litigation and non litigation two disputes, the backlog in court disputes, litigation cost and litigation longer case, this kind of diversified dispute solution way to reduce the pressure of the court case, alleviate social contradictions.

 

Chart 1

Feasibility analysis of docking mechanism, the three civil action

(a) docking mechanism of civil litigation mediation to solve the positioning mode in civil disputes

From the concept of docking mechanism can be seen in the civil lawsuit, civil lawsuit docking mechanism including conciliation, mediation, arbitration and other means of dispute resolution, these kinds of dispute resolution methods have their respective advantages and priorities. Reconciliation is a dispute belongs to the private relief way, the reconciliation results will make both parties are willing to accept, the interest of both countries, but the results of the agreement the parties need; in the solution civil dispute mediation is one of the most commonly used method, it is a result of both parties mutual compromise, but the results are not only both sides reached consensus and compromise, also need mediators influence, so as to achieve better social effect; while the arbitration is to not open civil dispute for a professional, as well as the litigant, but reached its applicable conditions as well as the arbitration agreement than the first two methods have higher requirements.

The civil procedure is to solve civil disputes through court and litigation activities program. Civil litigation is antagonism, strict normative and legitimacy and mandatory final and authoritative characteristics. This kind of dispute resolution to the maximum to meet the height requirements for dispute facts and results. But with the dispute settlement mechanism, civil litigation will the parties need to pay a high price in terms of time, manpower and material resources are.

Therefore, we can see that in the various dispute resolution mechanism, civil litigation has a fundamental role. The civil litigation system as the last line of defense for civil rights, with support, maintain the other dispute resolution function, which is reflected in: first, for the prediction of the cost of litigation and civil litigation justice results, the parties can choose according to non litigation to resolve disputes, vigor from this perspective the civil litigation system gives the procedure external dispute resolution greater.^[39]Secondly, the civil procedure law provides safeguard for the litigation settlement.^[40]

The civil litigation and mediation mechanism and litigation of this two kinds of dispute resolution mechanism, we should pay attention to avoid the two extremes, first, too much emphasis on Dispute Resolution Mechanism of non docking mechanism of civil regulation, this will lead to China's heavy mediation light trial point of a stirring among the dry bones, second, we are not low underestimate the civil action adjustable docking mechanism, emphasizing the lawsuit doctrine. In China has experienced a mediation to the lawsuit and mediation and litigation together; western countries have experienced a lawsuit doctrine toADRCircumstances. These two examples are fully illustrated, a theoretical model which solves both litigation and non litigation dispute, civil litigation mediation docking mechanism can not replace the action, a way which is to resolve the dispute and litigation, but it is complement each other, both are an important means of resolving disputes.

From the above analysis of docking mechanism regulating all aspects of civil action, we know that China is a traditional country multiple mechanism to solve a social disputes, and the rule of law in modern society has also diversified needs, so the civil lawsuit mediation docking mechanism is a new measure to China to explore the diversification of the dispute settlement mechanism.

First, the civil litigation mediation docking mechanism has the role of unifying all kinds of disputes settlement. At present, the diversification of the dispute settlement mechanism established in China with the people's mediation, arbitration and mediation, administrative mediation, conciliation, however, dispute settlement method has advantages in resources did not form an interconnected complementary system. The reason is because of a dispute because was criticized by scholars to be abandoned, another reason is affected by litigation consciousness. Civil litigation mediation docking mechanism to change China's dispute settlement way present situation, integration in various ways on the basis of docking mechanism, set up, therefore, the civil litigation mediation docking mechanism is the basis for China to explore the diversification of the dispute settlement mechanism.

Second, the civil lawsuit mediation docking mechanism of the diversified dispute settlement mechanism is the common choice of all countries in the world, reforming the mechanism of dispute caused by diversified dispute settlement mechanism to resolve disputes, found a new way. USA court annexed mediation mechanism, British and German mandatory pre-trial mediation mechanism, a Japanese court adjustable stop mechanism, are the common choice of the diversification of the dispute settlement mechanism.

(two) the feasibility analysis of docking mechanism of civil lawsuit

1Basic conditions of docking mechanism, civil litigation mediation

With the progress of our society, economy has achieved great development, the social structure has changed. All kinds of social contradictions is followed, and is characterized by diversity and complexity of this problem, the court began to explore the diversified dispute settlement mechanism. Civil litigation mediation docking mechanism formally meet this need, the dispute settlement mechanism of the integration of resources and exert its advantages to resolve social contradictions.

(1The civil lawsuit) docking mechanism in line with the interests of the status quo of China's diversified. China is currently in a plurality of stages of conflict of interest, only rely on the judicial system to solve the current our country faced"The litigation explosion"The situation is not possible, it is not realistic. Therefore, the establishment of a fair, efficient, reasonable and in line with the diversification of the dispute settlement mechanism of diversification need to solve the judicial system pressure, alleviate social contradictions and effective way to achieve social stability. Docking litigation and conciliation mechanism not only provides a new and effective remedies for the parties to resolve a dispute, but also to maximize the maintenance of the interests of the whole society. This is consistent with the inherent requirement of building a socialist harmonious society in China.

(2The civil lawsuit) docking mechanism with maximum stakeholder needs. At present, one of the difficult problems in our litigation and non litigation dispute resolution is difficult to execute, victory in the law, but has not been restored to damage the interests of the fact. The mediation system, the judicial authority is a serious challenge. However, the civil litigation mediation docking mechanism with the existing non litigation dispute resolution the biggest difference lies in its has stronger autonomy and justice, which emphasizes the autonomy of the parties, the court authority tendency in this mechanism has been restricted, make it easier for people to accept this kind of non litigation dispute resolution mechanism, secondly, the non judicial litigation dispute resolution has stronger, the effectiveness of a conciliation agreement was confirmed in this mechanism, solve in specific disputes, not only"Case"And"Things"This pattern is, easier to accept people.

(3The civil lawsuit) docking mechanism is more stable in China, maneuverability. China has always attached great importance to the mediation of this non litigation dispute to solve the way to solve the social disputes, and the non system has a long history in our country traditional litigation dispute solution. Civil litigation and mediation have the operational model can be found in the actual operation, the local judicial system to establish civil lawsuit mediation docking mechanism on Chinese mediation system to meet the diverse needs of society, establish the operation mechanism of different according to the specific needs of the community, to solve the social disputes through the normative documents, normative system, have very strong maneuverability.

2, legislative and judicial policy based docking mechanism of civil lawsuit

The Supreme People's court in2004The Supreme People's Court issued "on the implementation of23The provisions of a justice for the people of specific measures opinions ", the people's court for training people's mediation organization shall give guidance and skills, improve the people's mediation organization to mediate the efficiency as well as mediators level and skills;2004The Supreme People's Court issued the "Supreme People's Court on several issues of civil mediation work of the people's court rules" specified in the relevant procedures for assisting mediation, pretrial mediation, mediation;2009The Supreme People's Court promulgated the "opinions" the Supreme People's Court on the contradictions and disputes, establish Connects Litigation and non litigation settlement mechanism for some problems in our existing mediation system to carry out the provisions of;2010Years of "people's Mediation Law" promulgated and implemented, on the people's mediation in the law to confirm;2012Confirm the amendment years validity of civil procedure law to carry out the provisions of the mediation agreement. Legal norms related to both civil lawsuit mediation docking mechanism to regulate and further confirmation, has a basis in the judicial policy.

 

3Docking mechanism of civil litigation, system adjustment

In the judicial practice of our country at present in the emergence of a variety of litigation and mediation mode, can offer choices. This part of the adjustable docking mechanism in the action characteristics and operation condition are discussed in detail, not repeat them here.

4The positive effects of docking mechanism of civil litigation, adjustable

Implementing docking mechanism of civil regulation is intended to alleviate the shortage of judicial resources caused by pressure, sufficient play a supplementary role of non litigation dispute resolution mechanism. In the concrete operation process, although the number of cases is increasing, but the case closed rate, rate of mediation, withdrawal rates are rising.

Putian City Court in the implementation of mediation linkage mechanism in two years time, has achieved significant positive effect. Docking litigation and conciliation mechanism in the implementation of annex to the Putian court of litigation mediation is not only raised coordinated execution reconciliation rate and part of the people's court trial, execution and petition letter work pressure.2005Years9January2007Years12Month, Putian city courts of civil and commercial cases25805Member, mediation or withdraw15723A withdrawal, transfer rate60.93%, the conclusion of the administrative cases905Member, through consultation to resolve after withdrawal of Justice186Member, accounted for20.5%, half carrying case15732Member, achieve reconciliation and the parties in the implementation of automatic performance11440Member, accounted for72.7%, than2005Year the ratio rose began to carry out docking litigation and conciliation mechanism17.6,15.5,13.5A percentage point,"Case much less, much less, adjusting to the node"The improved greatly.^[41]

Luoyang city Jianxi district court after the operation of four months, forming a mediation withdrawal rate increased significantly, the masses satisfaction, community lawsuit rate drop, decline of letters and visits from the masses"Two or two down"A good situation.2012The first quarter of this year, the number of cases in Jianxi District Court636Member, while the same period last year968Member, dropped compared to the same period34.29%The number of cases, and was the first decline in recent five years; the civil and commercial cases mediation withdrawal rate rose18.29%The masses satisfaction; up in the courts at the grassroots level in Henan Province80Multiple precedence; letters and visits from the first quarter of last year89Times down to the first quarter of this year40Times.^[42]

Figure two is the Chongqing City Court2004-2010In case the rescinding rate, can be seen from the above, the case of mediation rate basically is on an upward trend, the transfer case withdrawal rate is also rising, mediate the dispute has got good effect in actual operation in our country.^[43]

Four, the running status of China's civil litigation and mediation mechanism and existing problems

(a) the operation status of China's civil litigation and mediation mechanism  

Civil litigation and mediation mechanism because of its unique advantages, have different modes of operation in different regions, and each specific operation mode has its representative and positive effect, but the difference in performance is very outstanding, for the study of specific operation mode existing analysis helps us conduct in-depth understanding of the docking mechanism, to improve the civil litigation mediation. The author in this part of the running situation of the civil litigation mediation docking mechanism were described in this paper is its mode of operation, the operation effect and the operation mechanism of specific part in this article has discussed other.

1, Putian"Three mediation, a confirmation, a guide"Pattern."Three mediation"The pre litigation mediation, mediation, Conciliation Commission to assist,"A confirmation"The confirmation,"A guide"The mediation guidance.

 

Chart two

The pre litigation mediation, which is of simple civil case specific, before have not yet entered the proceedings in the case, the party propaganda by the relevant personnel, with the consent of the case, will turn by non litigation dispute mediation organizations for mediation; a dispute again into the proceedings in cases where mediation fails. Settlement mechanism.

To assist in the mediation, the judge in the litigation mediation cases, according to the specific need, invite relevant units or individuals to assist the judge to a mediation mechanism to resolve the case. The relevant units and individuals here include extensive.

The entrusting mediation, litigation is to have the trial of the case, can entrust other organizations or individuals to solve or not suitable for the trial of cases by other social organizations to carry out mediation to resolve social disputes mechanism.

Confirmation, through adjusting for social organization or individual mediation cases mediation agreement, the parties may apply to the people's court for judicial confirmation, in order to obtain the mediation agreement enforceable system.

Guide the mediation, which the court specified trial business backbone, fenpianbaogan, effective deployment mediation organization; actively serving the overall situation, should be the leading organs of the party and government assignment and mediation organization requirements, to the front to guide emergency, group as well as the construction of key projects within the jurisdiction of the dispute mediation work; regular, irregular held with the relevant administrative organ, industry organization joint meeting, exchange mediate disputes information, summarize the experience and lessons.^[44]

   2, court annexed mediation organization mode. For some disputes in the case before, in the foundation with the consent of the parties agreed on by the court appointed mediator, the current mediation, or entrust other people's mediation organization to mediate, tune into the success of the people's court according to the requirements of the parties make a mediation agreement, mediation fails into the trial procedure. Shanghai Pudong court annexed mediation model has achieved positive effect good. Shanghai Pudong district court to take up"The window before litigation mediation"The mode of mediation, the court on the court is responsible for coordinating the case management, first to the parties issued "guidelines" mediation before litigation, encourage the choice before litigation mediation to resolve disputes.^[45]

3Docking mode, special. This model is a new docking mode, explore basic inform mediation and the entrusting mediation before litigation in the choice of some key cases, based on a comprehensive docking, to study and promote the docking litigation and conciliation work. In theAThe district court in the object selected only compensation disputes of medical disputes and the traffic accident damage in two cases as a special docking; these two kinds of cases involving personal injury disputes, contradictions between often relatively deep, it is quite difficult, but the quantity is very large, need to integrate various forces to resolve disputes, mainly as the court and the people's mediation, administrative mediation docking docking health department and court proceedings and the Ministry of public security departments of administrative mediation.^[46]

4, joint mediation room mode. This model is set up a joint mediation room in the court, according to the facts of the case and the complex social relations, social contradiction and should not be used to solve the dispute cases of judgment, mediation to resolve through joint mediation room, joint mediation room can coordinate with related departments. In the Beibei District People's court, the invitation or employment of retired judges, experienced lawyers and retired judicial personnel stationed in mediation room, this model can alleviate the pressure of the shortage of judicial resources.

5,"Four in one, two level network"The"Grid"Management model. Luoyang District of Jianxi City, the full implementation of community "grid" mode. Jianxi region11Neighborhood offices, each office has a mediation committee;54A cell, each cell has a conflict mediation room; each building has a poll information, a total of the whole region2500More information, mediation blossom everywhere.^[47]

6, "the court and stability maintenance center" docking mode. Zhongshan City, the establishment of the court mediation docking station for the pre litigation mediation. People in the case of small disputes, can go to the local purpose Weiwen letters Center for mediation, the mediation agreement is reached to apply to the court for confirmation of legal rights, shorten the time from several months to a few days, the mediation fails to enter the proceedings, as shown in table three.^[48]

(two) existing in our civil litigation and mediation mechanism problems

Civil lawsuit for docking mechanism used in judicial practice in China, and achieved good social effect. At present our country judicial reform to establish a diversified dispute settlement mechanism should take this as point and further strengthen. Achievements made in the civil litigation mediation docking mechanism of operation, we should also see, in the social practice, the civil lawsuit mediation docking mechanism still exist some problems.

1Docking mechanism, civil litigation mediation in the legislative problems

(1The lack of uniform legislation of high order)

The docking litigation and conciliation mechanism of legislation, at present our country only2010Years8Month China promulgated the "the people's Republic of China and the people's Mediation Law"2012Years of amendment to the civil procedure law stipulates that the 194th"Acknowledgement of application Magina agreement by both parties in accordance with the law, the people's mediation method, within thirty days since the effective mediation agreement, mediation organization to the basic people's court at the place"The judicial interpretation, and some related.

 

Chart three

(2Legislation is lack of operability)

Even if it is already promulgated the "people's Mediation Law" is only thirty-five, and most of them are principled stipulation, the lack of practical operability, for docking litigation and conciliation of the diversified dispute settlement mechanism only has the guidance function. The docking problem about docking mechanism civil tone did not make specific provisions, which, in the "people's Mediation Law" in the provisions of the confirmation of the mediation agreement with special procedure, but the trial of the effect of mediation agreement that did not make a provision; second, the people's mediation law also provides only a mediation the people's mediation, however docking litigation and conciliation the diversified dispute settlement mechanism includes not only the people's mediation, therefore, have to say that this is the people's Mediation Law in legislation and defect. That is to say, a diversified dispute settlement mechanism legislation does not have the special law to regulate. Legislation is not perfect, the legal basis is not sufficient, the relevant provisions on each place, which makes the civil litigation and mediation mechanism only in the operation of China's judicial practice and the relevant judicial experience or judicial interpretation, which led to the docking mechanism of civil regulation in the legislation of uncertainty.

2, litigation and mediation mechanism problems in judicial practice

(1) system, differences prominent

In the civil litigation and mediation mechanism of civil litigation and mediation mechanism is the most widely existing in our country is to judicial led and guided by the government's civil litigation and mediation mechanism of two kinds of operation mechanism, that is the government representatives and the court as the representative of the diversity of the docking mechanism; there are Autonomous non-governmental organizations represented the mediation organization. Due to the lack of unity in the system, the defects of lack of coordination mechanism of China's civil litigation and mediation mechanism. Although the government and the court as the leading role, but this is only the policy provisions, and have no legal and institutional norms, so, this kind of civil litigation and mediation mechanism, one can imagine the arbitrariness of the subjective will.

For example, there are many kinds of operation mode in civil litigation and mediation mechanism of judicial dominated in.

In today's society of diversified needs, docking mechanism of civil litigation mediation can meet the needs of all parties, and actively play the role of dispute resolution, system security is the premise, otherwise it will lead to coordinate transposition in various docking mode, as well as to the docking mechanism of civil lawsuit is negative hindering development.

(2) exist mandatory mediation, violations of the right of action

In the civil litigation mediation docking mechanism, no matter is the choice of mediation to resolve disputes or litigation, this is a choice the procedural rights of parties, is the true meaning of performance parties according to their disposition to. That is particularly reflected in the mediation of the more obvious, mediation is the consensus of both parties to the contract performance, any party not desirable but by outside pressure to make mediation mediation is voluntary, violation of the principle of legality.

In China's current civil litigation and mediation mechanism, whether the court or government, its always in the leading position, litigant's right of suit any violations of the risk, in our country the"To the tune of generation"Trial idea, no matter whether the parties are willing to mediation is not decided by the judge, and even"To determine the pressure regulator"And"Long tone is not found". This goes against the principle of voluntary case, is very difficult to resolve social disputes thoroughly.

Five, reflections on the perfection of the civil litigation and mediation mechanism

(a) to reflect on the question of civil tone of the docking mechanism

1Docking mechanism, civil litigation mediation existence rationality

Civil disputes this docking litigation and conciliation mechanism of multiple resolution mechanism, has been questioned and criticized by many scholars, and even that is justice"Criticized".

A kind of viewpoint thinks, conciliation constitute the main features of our civil trial procedure, so that China's civil trial as "mediation".^[49]This is the embodiment of court mediation of abuse, because the mediation program start initiative lies in the judge's decision, the start of the arbitrariness.

Another point of view, the current mediation system has a serious impact on China's judicial procedures, in the legislation, the legislation guiding ideology in China's long-term mediation, the mediation process Become judicial procedures and, in the process of adjusting, the parties do not dominate the market, but the court is in a dominant position, to reach a mediation process and the mediation agreement will be the judge of the force; in the judicial practice, the non litigation dispute solution is the expansion of the trend in China in the process of trial.

The third view, civil disputes this docking litigation and conciliation mechanism of multiple mechanism of solving impact for China's ongoing construction of the rule of law, litigation and mediation of this active judicial, contrary to the"Judicial passivity"The principle, as well as the court neutral principle, the dominant position the judge decided the start of mediation or not is not decided by the parties and is the judge.^[50]The dominant ideas of scholars is still the basic ideas on ideology and litigation law center.^[51]

In view of the above several viewpoints, the author elaborates his views. On the judicial nature, its is to restore law and order, and the order to some extent on the performance for the system, in view of the above question, the author thinks that to perfect our judicial system, can solve the above problems. The judge to start mediation randomness can be regulated through the voluntary principle of party, whether the case to mediate, whether mediation will be get the consent of the parties for mediation; effect of trial procedure and trial one problem, through the separation of mediation and trial system specification.

2Whether the docking mechanism of civil lawsuit, the interference of judicial independence

Enjoy Yandun think"Independence of the judiciary in that it only by his unique judicial rules in its concept and behavior are not swayed by other political organizations and social attitudes and behavior". Judicial independence includes two aspects of idea and system. In concept, the judiciary should form their own occupation idea, form the judicial occupation shared some ideas, these ideas to ensure that judges in similar cases have made similar objective rather than purely personal judgment, the system level requirements of judicial personnel can act according to their own ideas and rules.^[52]

A civil lawsuit mediation docking mechanism, there are a lot of questions about its relationship with judicial independence. For example, in litigation and mediation mechanism in different modes, Party committee, government and other mediation organizations and public opinion for the court status of judicial independence will have an impact, whether it will interfere with the independence of the judiciary. The question the author is understandable, but in the existing social system, there is no absolute fairness, any kind of things are relative, in litigation and mediation mechanism, for such a question we can set the system to control, to achieve the target, such as the solution for the mediation organization the case, to supervise the court just guide and in business, are not directly involved in the dispute mediation, and after unsuccessful case again to enter the proceedings, mediation document and data nor with dispute and enter the proceedings. Another question is, in the civil litigation in china,"Combination of mediation and judgment"Is China's unique mode of trial, the judge to play two roles, this trial will harm the existence of judicial independence in essence.

The author believes that, in the civil litigation mediation docking mechanism, through the system construction, is the implementation of the separation of mediation and trial and mediation system, judges and mediators act as different roles in different programs, the two are not in conflict, so the civil litigation mediation effect of docking mechanism for judicial independence in China is impossible.

3Whether the docking mechanism of civil lawsuit, with active judicial too

"Don't tell","People don't give officials do not study"Is the embodiment of judicial passivity. Judicial passivity, as the nature of justice, has universal acceptance. Abide by the judicial passivity is regarded as a virtue of judges. Professor Chen Ruihua thinks that the judicial passivity, in order to maintain the court between parties in neutral position, the judicial passivity can ensure the judge and referee conclusion accepted by the parties and the society, so as to safeguard judicial authority. For litigation and mediation mechanism has the initiative was the judicial intervention, social disputes the excessive, contrary to the fundamental principles of its judicial passivity.

The judicial passivity of the author for the passive judicial procedure start. Because, the judicial passivity nature is"Don't tell"Start and end of the judicial process, and embodies the party's right of disposition, the judiciary is a control program. In this program, and did not start the procedure rights. Judicial proceedings rights eventually in the hands of the parties.

The author believes that, in the civil litigation mediation docking mechanism, where no matter in the mediation process or to enter the trial procedures are embodied the right of choosing procedure, is completely out of the personal statement. First of all, in the docking mechanism civil litigation mediation, court for the parties dispute is a preliminary review, put forward suggestions for handling disputes, the final decision is that the parties rather than the court. Even if is the procedure of choice, the court also only in the guiding position. For example, the court has accepted the case to the trial court before, that the parties to the mediation organization to mediate the resolution, in a case by the people's court, judge can advise the parties choose mediation and trial procedure. Secondly, in the civil litigation mediation docking mechanism, we advocate is the implementation of the operation mechanism of judicial oriented. But the court in this mechanism does not go beyond the passive position. The court is only for the social dispute resolution options, the case distributary, mediators, and develop business on the guidance of the mediation organization personnel, this is just the court judicial activism embodied, not with the judicial passive to contradiction.

(two) legislative proposals docking mechanism of civil lawsuit

Docking mechanism as an important part of civil litigation mediation of civil disputes settlement mechanism in our country, it is necessary to give a certain specification in legislation. The author thinks that in our civil procedure law is special settings and the regulation of the docking mechanism of civil regulation, only in this way it is the legislative and judicial policy foundation.

1The legislation, standardization

The present Chinese legislation in the lack of operability, does not have the unification problem,A docking litigation and Conciliation Rules are mostly concentrated in the place of justice, so that justice has a lot of uncertainty. In our country, legislation about litigation and mediation mechanism is mainly reflected in the "Civil Procedure Law"2012Years of amendment,2010Years of the promulgation of the "people's Mediation Law" and relevant judicial interpretations.

The author thinks, in the content of legislation on the need to do the following:

First, the civil litigation and mediation mechanism should clearly define the concept of. As mentioned above, the concept of the current civil litigation and mediation in the legislation has not stipulated, the definition of civil litigation mediation docking mechanism is of great significance for the correct understanding and application of civil litigation and mediation of the dispute resolution. The concept of civil litigation docking mechanism adjustment point of view, the author has discussed in this paper.

Second, determine the docking mechanism of civil litigation mediation applicable scope of cases. The scope for application of civil litigation and mediation of civil disputes to the specifications, can avoid the judge in the case of abuse of power and shunt of mediation as inducement regulation violations, which helps to improve the judicial credibility and authority. Applicable scope of cases and not the case, the Shanghai City Bureau of justice for Jinshan District. The first is the application of civil litigation and mediation of cases: the following disputes through litigation and Mediation Center entrusted by the people's mediation and administrative mediation: marriage and family inheritance disputes, property management disputes, the telecom contract disputes, disputes between neighboring, road traffic accident disputes, rights and obligations clear general personality right dispute, the compensation for medical damage and medical service disputes, contract disputes, consumer disputes, the object is small business, private lending, the processing contract disputes, land disputes, the other for the docking litigation and Conciliation Center commissioned by the mediation of disputes. The second is the mediation is not suitable case scope: the following disputes shall not be entrusted mediation: must apply the ordinary procedure disputes, apply the special proceedings disputes, a party One's whereabouts is a mystery. disputes, property disputes, personal status confirmation, the other is not suitable for the request mediation of disputes.^[53]Shanghai City, Jinshan District on the scope of civil mediation of the standard is very clear, for the rapid settlement of disputes, which plays an important role in protecting the interests of the parties.

Third, the scope of the mediator, mediation procedure qualification, responsibility and occupation moral standard. Mediators play an important role in the mediation of disputes, mediation quality can be solved quickly have a lot of contact. The scope of people's mediators mediator, qualification and occupation morality to regulate not only benefit disputes resolved in a timely manner, but also help to improve the authority of mediation. Funing County People's mediators accreditation by the County Bureau of justice in charge of the Secretary, the chief, county labor and human resources and social security bureau chief, grass-roots court title, politics and Law Committee, the township judicial institute, all kinds of people's mediation work management12Member qualification accreditation committee, responsible for the people's mediators qualification assessment; assessment includes: state owned enterprises, private enterprises, institutions, people's organizations and district towns, the rural grass-roots mediation committee organization of personnel; including the primary, intermediate and advanced mediator mediator mediator three titles; and for evaluation of the condition of the mediator regulations, in order to improve the quality of the mediator.^[54]The mediator occupation moral, two Anhui West Pu Xiang made specific provisions: should adhere to the principles, dedication, enthusiasm, honesty and trustworthiness, manners, honesty and self-discipline, focus on learning, constantly improve the legal, moral quality and mediation skills; people's mediators should first ask themselves to citizen moral standards, do follow the example of citizen moral the.^[55]

Fourth, the specific operation procedure of civil lawsuit adjustable docking mechanism. On the specific operating procedures, litigation and mediation of the author, the docking litigation and conciliation judicial leadership is relatively suitable for the situation of our country, litigation and mediation procedure based on the Putian model is the best choice. This part has been discussed in this paper, no longer.

2The significance of legislation, perfection

First, perfect the civil lawsuit legislation docking mechanism, plays an important role in safeguarding the interests of the parties and the court and the parties abuse the right constraint. On the one hand the rapid settlement of disputes, to restore social order, on the other hand will constrain the court acts, prevent its mandatory mediation, violations of the right of action.

Second, improve the mechanism of civil lawsuit mediation docking legislation, can also enhance the authority and norms of civil tone of docking mechanism. The authority may make more parties choose non litigation dispute resolution mechanism to resolve disputes quickly; its normative can effectively protect the legitimate rights are not violated, and realize the fairness and justice.

(three) the institutionalization of civil litigation mediation docking mechanism construction

A major move of civil litigation and mediation mechanism in our country are exploring now is the diversification of China's dispute settlement mechanism. The problem of China facing the cases increasing, the shortage of judicial resources and other western countries have experienced, draw lessons from foreign successful experience. Seen from above, the operation mechanism of evaluation about China's current civil litigation and mediation mechanism as well as various aspects of the current civil litigation and mediation mechanism, the current has limitations, great therefore, further development of civil lawsuit mediation docking mechanism and improve the overall point of view, we need to solve the considered mechanism from exploring diversified dispute, the only way of civil litigation and mediation mechanism of value can be brought into full play, it will be more practical significance. From the existing in our country's civil litigation and mediation mechanism, puts forward the perfect suggestion from the following aspects.

1, establish systematic, collaborative civil litigation and mediation mechanism

The unified judicial is prerequisite to maintain the judicial authority and its stability. Docking litigation and conciliation mechanism is the integration mode of diversified dispute settlement, the establishment and improvement of the system is an important problem to give full play to the advantage of litigation and mediation mechanism. In this paper the civil litigation and mediation mechanism and the running status and discusses the diversity and specific operating mode, mode of various differences more prominent, in the concrete operation too much randomness, this system on the judicial authority and litigation rights too much damage, not conducive to the maintenance of judicial conviction force as well as the legitimate rights and interests of the parties, docking litigation and conciliation mode diversity for docking mechanism of civil lawsuit mediation system, collaboration is useless.

To establish the system of cooperation, the diversification of the dispute settlement mechanism requires the joint efforts of the multi - it can be achieved, mainly exist in the paper pattern is justice oriented and government led two modes. A lot of controversy exists for the choice of this model, some think should choose the court annexed mediation model, this model is to learn from the western countries judicialADRPattern, but this pattern is in China also questionable; another view is the establishment of litigation and mediation mechanism dominated by the government, this is a point of view that the author strongly against, in the China has not yet fully independent conditions, if the implementation of this model, then the judicial independence in our country is all gone, the only form of judicial independence, judicial will become a government affiliated institutions.

(1) to strengthen the construction of civil litigation and mediation mechanism platform system

Platform construction is civil litigation mediation docking mechanism can guarantee the normal and effective operation. The establishment of civil litigation and mediation platform perfect, only to have the possibility to achieve diversified dispute settlement mechanism, multiple dispute resolution can be fully realized functions complement each other and sharing of resources, the parties to achieve the act with United strength.

First of all, set the litigation and mediation center, realizing litigation and non litigation dispute resolution workplace docking. Docking litigation and Conciliation Center is a way to solve the hub docking litigation and non litigation dispute, case can timely diversion, social disputes can be solved in time and the litigant's civil rights and interests is the pivotal role can get relief and docking litigation and Conciliation Center is directly related to whether to play. The court should stand in the convenient client, timely and effective dispute resolution angle of civil litigation and mediation center set. Taking Shanghai city as an example of Jinshan District: litigation and mediation center in the region11A street in the town, industrial zone, set up the circuit mediation room, by the district court civil court, Zhu Jing court and District Justice Bureau grassroots KEPAI responsible, realize seamless docking, responsible for guiding the region adjustment Commission, every town and industrial zone,200The village (neighborhood) committee people's mediation committee of inquiry, consulting reception and the flow of the trial of cases.^[56]

Secondly, establish a mediator system. First, the establishment of the chief mediator system, civil litigation mediation docking mechanism of non litigation dispute resolution mechanism to the chief mediator for the center, the establishment of appointment system mediators, specially invited mediators (retired judges, lawyers and other related system). Because of the social disputes show the diversity and complexity, and solve the problem of contradiction more prominent, for the people's mediators ability put forward higher requirements, improve the establishment of the chief mediator system and other system is not only conducive to improve the overall level of civil mediation team quality and mediation team, but also conducive to the authority of the high mediation.

(2) to strengthen the construction of working mechanism of civil litigation mediation of docking mechanism

Civil litigation mediation docking mechanism of collaborative demand docking mechanism of civil construction adjustment, transverse to strengthen the system of litigation and non litigation dispute settlement of disputes and non litigation disputes collaboration vertical system in the way of solution.

Longitudinal is to realize litigation and non dispute resolution mode. First, to achieve docking with the people's mediation, the people's mediation system as the basis, give full play to the advantage of the power of the people's mediation, litigation and mediation center to understand the situation of people's mediators; second, to achieve docking with the administrative mediation, appeared in our country administrative litigation mediation appeal.^[57]On the other hand is docking with the other way of conciliation, mediation by the social organization related to participate in mediation, rapid settlement of disputes.

Transverse mediation system is interrelated mechanism between non litigation dispute settlement. First of all, the people's mediation and administrative mediation docking, in relation to the administrative organ of social disputes, mediation organization can invite administrative mediation organization or administrative mediation organization to mediate, to solve the social disputes; second, the people's mediation and other mediation to connect, in specific disputes, according to the needs of specific disputes, in a variety of non litigation dispute resolution mechanism in circulation, to quickly solve disputes, maintaining social order.

(3) security system docking mechanism of civil lawsuit

Establish the funds safeguard system. To establish a special financial security system, proper increase of mediators of compensation, so as to improve their work enthusiasm and stable adjuster team, the docking litigation and conciliation mechanism smoothly.2007Years of Ministry of finance, the Ministry of justice "on Further Strengthening the work of people's mediation security funds opinions" provisions of the people's mediation work, funds including the judicial administrative organ and guide the people's mediation work, people's mediation committee work subsidies, subsidies for the people's mediators. The city of Tianjin Binhai New Area People's mediation committee grants funding standard, Ju(The village)Committee people's mediation committee each month600Yuan, street(The town)Above the level of the people's mediation committee each month800Yuan; people's mediators subsidy funds standard per person per month150Element.^[58]

The mediator training system. Because of uneven quality of our mediator, conciliator team quality relative to the judge is low, a mediator training system has positive significance in improving adjuster team. Invite relevant experience judge regularly or irregularly on mediators by business and skills on the mediation training, improve the quality of the mediator mediator; perfect the examination management system, effective management system is the effective guarantee to improve the efficiency of mediation. By improving the mediator in the mediation of business skills to improve and mediation personnel occupation morality, rapid settlement of disputes, restore social order.

Theoretical research system. The theoretical research and practical experience is docking litigation and conciliation mechanism can be the basis for establishing and perfecting the. To strengthen the theoretical study and mediation mechanism of action, continuous innovation of dispute settlement mechanism, improve the work efficiency and better and improve the mechanism of civil lawsuit mediation docking.

The high court, court guidance system. At present, the docking mechanism of our country lawsuit development are generally carried out in the court, the court of quality level, the shortcomings of institution, so the high court, court guidance is very necessary.

2, has some outstanding problems in the judicial practice of our country, mainly in the following aspects:

(1Separation of mediation and trial system)

No clear provisions in the legislation, the lack of operability, so in practice, our courts are taken"Combination of mediation and judgment"Form. The mediation and trial procedures are applied in the same procedure, mediation by the people's court for the trial of the way and manner, in the course of legal proceedings, mediation and trial can be arbitrary switching.

For what kind of separation of mediation and trial system, there are different views in China scholars: one that court mediation from the civil proceedings out completely separated, the establishment of non litigation of civil mediation system, the mediation court outside the organization or individual. Another view although also in favor of separation of mediation and trial, but that the court mediation system for separation of mediation and trial. In the court the specific mode of operation of mediation system reform, the mediation is still chaired by a judge in the lawsuit mediation, the mediation and trial method but by different judges are responsible for the same case to achieve the separation of mediation and trial purposes.^[59]The pattern of these viewpoints, the author thinks, each view has its own reasons and feasibility. But in general, the first thought that implements the complete separation of the system it is a thorough reform; however, second moderate, modest reforms based on China's current judicial system and judicial reality, has the feasibility and practical. Therefore this paper agree with the reform of the second view.

According to China's "Civil Procedure Law" in addition to the provisions of the mediation cases,"The court shall, according to the parties on a voluntary basis, based on clear facts, to distinguish between right and wrong, mediation". In the litigation procedure justice is the mediator and judge, has a dual identity, so, the judge to obtain information will influence the attitude in the mediation in the trial, the judge also acquired in the mediation of information will also affect their attitude in the judicial procedure. In the current system in China's current role conflict, the judge acts as a mediator and judge, will bring the adverse social impact trial in this case case. Therefore, judges in civil litigation and mediation mechanism"Separation of mediation and trial"The purpose of the system is conducive to the realization of the neutrality of judges and restrict the arbitrariness and subjectivity.

(2Adhere to the principle of voluntary)

China has always existed"With the pressure regulator","Long tune never"Violations of the rights of the parties to litigation case. In the concrete operation process, the judge mandatory mediation phenomenon in disguised form is common, which seriously violated the principle of voluntary, even if is the ultimate solution to the dispute, but to some extent he is the lack of substantive justice. So the method and inhibit the occurrence of this phenomenon is an important content to guarantee the legitimate rights of the parties.

The principle of voluntary refers to the court in litigation and mediation mechanism for dispute settlement shall respect the views of the parties, only when the parties in accordance with the will of the parties to the case that could mediate. The concrete in the operation should be reflected in the following aspects:

The disposition of the parties. Disposition is the rights of the parties in litigation process. In the process of adjusting and mediation agreement is reached, the court should fully respect the right of the parties concerned, whether or not willing to compromise on the concessions, willing to reach a agreement court and judges cannot force the parties to make against the real act of will.

The right to terminate the mediation procedure. In the mediation of the beginning or in the process of mediation, the parties have the right to terminate the mediation at any time, and then select the other dispute resolution.

Autonomy the selection process, any court or judge cannot compel the parties to accept mediation, the judge should first be way characteristic, advantage to solve various disputes the parties do not explain, make recommendations to the parties according to the specific situation of the dispute, but the final choice should be in the hands of the parties.

Only through the mediation based on voluntary and legally, can guarantee the quality of case of mediation, can truly achieve Ning things appeal, for violation of the will of the parties, forced mediation situation, should be promptly corrected, otherwise it is not conducive to resolving disputes, but will intensify contradictions, the disputes are more complicated, and not conducive to social stability.

(3Effectiveness of docking)

Effectiveness of docking mainly refers to the mediation agreement judicial confirmation system.2012The new civil procedure amendment only stipulates the court to confirm the validity of the mediation agreement, the lack of operability, the confirmation, the author believes that should be considered from three aspects:

The first aspect, for only with money and securities mediation for the content of the agreement, a payment obligations of the parties fails to fulfill its obligations, the enjoyment of the rights of the parties may directly to the people's court for an order to pay, the people's court shall issue an order of payment without examination;

Second aspects, to the first and is not suitable for direct application to pay payment behavior, the parties may apply to the people's court for confirmation;

Third, in the mediation under the chairmanship of the personnel, the parties may agree in the mediation agreement, the payment obligations of the party who fails to perform his obligation, willing to accept the compulsory execution. Butt this effect can greatly improve the mediation agreement and the implementation efficiency, rapid recovery from damage to state the facts.

 

Node Language

In the pursuit of diversification of the value of a society ruled by law, solve the problems of the two mechanisms of litigation and non litigation disputes are not in conflict, the existence of common foundation. Civil litigation mediation docking mechanism as a new social dispute resolution in order to realize the combination of litigation and mediation mechanism, by its unique superiority to win more attention, are used in the countries all over the world. This article studies the mechanism of civil lawsuit mediation docking on the line is in our country traditional mediation system and foreign experienceADRCarrying out the basic mechanism of idea and system. However, the civil litigation and mediation mechanism established in China must be based on China's judicial philosophy and law environment to carry out, never to implement ism, otherwise it will lead to soil or water.

The author considers that in the new situation of China's judicial reform, establish and perfect the diversified dispute settlement mechanism, give full play to the important role of civil lawsuit mediation docking mechanism, using a variety of means to carry out the integration of social forces to resolve social disputes, the rule of law in our country can realize the goal of a harmonious socialist society, will eventually become a reality.

 

 

 

 

 

 

 

 

 

 

 

 

Notes.

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Postscript

At this point, my four years of university life will come to an end, time flies, graduation thesis means that I will leave this place four years of life, to another place to start a new journey. At this moment, Henan University of Science and Technology School of law, this let me start to linger in this four years place to grow up, learn together, work of students and teachers to accompany me through this four years, thank you, in this four years have I not alone.

In the completion, sincerely thank my teacher help associate professor Yang Yihong to give in the process of writing this article. From this topic is discussed and determined as well as the first draft complete, revised two draft and the final, Yang teacher help timely and enthusiastic; Modified Yang teacher on my thesis word for word and sentence for sentence, let her very touched, Yang teacher with its rigorous teaching style to our benefit; yang to help me not in school, in life, in the way of life of my teacher has great influence, can say, for I in University's development, Yang has a direction role. Once again thank you.

Thank Yang Shaolei teacher, miss Wang Fang, miss Cao Jing, miss Shi Junyang and miss Zhao Jingya. During my university, every teacher of my studies and life have been given a lot of help and support, thank you.

Thanks for the continued support of my family and friends here, thank you for your concern and encouragement, I will go with you.

                                         Li Zheng

2013Years6Month12Day