Research On Civil Compulsory Mediation

This dissertation aims to investigate a special civil mediation system which starts notaccording to the wishes of litigants but to the compulsory provisions in some specific civildisputes. This kind of civil mediation system is named as “civil mandatory mediation”because the starting procedure of it is significantly different from that of the common civilmediation. This paper contains7parts, about150thousand words.The first part “Introduction”.The author explains the purpose and motivation ofselecting this topic, and indicates that it is the touch and subversion of civil mandatorymediation to basic idea such as voluntary mediation, procedural benefit, the right of choice ofcivil procedure and the right to request adjudication etc which forms the original motion andcause the author to explore. On the other hand, the foreign legislations generally haveadmitted this system and the domestic investigation is gradually increasing, especially therevising process of our Civil Law in2012reveals the apparent tendency of mandatorymediation and summon the author to research also. Through this topic, the author intends toprobe the legal principle and value of civil mandatory mediation, analyzes the foreignlegislation and its basic mode, the tradition and practice of our mandatory mediation andarguments the future construction by giving some proposal. Then,the author generalizes thebasic status of existing research and explains the writing methods.The second part “The basic theory of civil mandatory mediation”.Through analyzingdifferent comprehension about civil mandatory mediation, the author gives its definition andinvestigates its type and characters. Then, the author points the fundamental differencebetween the mandatory mediation and imposed compromise, considering that the former onlyinvolves the starting procedure, but the latter not only involve the process but also the resultwhich has caused prejudice of the mandatory mediation. On the other hand, the authordiscriminates the mandatory mediation from the leading procedure of mediation andmandatory factors of mediation, then the author analyzes the position of mandatory mediationin the basic theory of civil procedure and arguments the rationality of it by analyzing therelationship between mandatory mediation and voluntary mediation, procedural benefit, theright of choice of civil procedure and the right to request adjudication.The third part “Study on the foreign civil mandatory mediation”. In this part, the authorfirstly study the legislation of Germany, France, Japan, America, England, Australia, Taiwan and introduces the basic content of them from the scope, candidates, organizations and otherprocedures. Secondly, by using the comparative method, the author concludes the mode offoreign mandatory mediation, and divides them into four basic modes: the categorical referralto the judge hosting mode, the discretionary referral to the judge hosting mode, the categoricalreferral to non-judge hosting mode and the discretionary referral to non-judge hosting mode.According the four basic modes, the author locates the above countries and areas and analyzesthe regular patterns and concludes some important factors that affect the choice of mode.The forth part “The tradition and current situation of china’s civil mandatory mediation”.On one hand, from the view of historical sociology,the author investigates the civilmandatory mediation from Ming dynasty to times of revolutionary base by using historicaldata to reveal the tendency of mandatory mediation in traditional china. Meanwhile,the authorconcludes the three stages through probing the development of civil mandatory mediationsince the founding of RPC. On the other hand, from the view of empirical analysis, the authorinvestigates three typical modes in current china one by one and concludes five features ofour civil mandatory mediation such as the leading status of court, and so on.The fifth part “The necessity and feasibility of constructing our civil mandatorymediation”.In this part, the author analyzes the necessity and feasibility of constructing ourcivil mandatory mediation. First of all, the author points it is necessary for china to transformthe mediation system from traditional to modern times, for the reasonable solution of civildisputes, and for the change of role of lawyer. Then, the author points that not only thedevelopment of Great mediation but also the existing experience and legislation haveprovided support for the constructing of our civil mandatory mediation.The sixth part “The constructing of our civil mandatory mediation”.According to themodes using in analyzing the foreign civil mandatory mediation, the author firstly answers thequestion which mode we should choose and points that it is appropriate to choose thecategorical referral to non-judge hosting mode in pre-trial mandatory mediation and thediscretionary referral to judge hosting mode in the litigation mandatory mediation.Secondly,the author delimits the scope of pre-trial mandatory mediation into family disputes, smalldisputes, labor disputes, medical disputes and traffic accident disputes and arguments thenecessity. At the same time, the author gives some limitation to the implement of the litigationmandatory mediation in order to guarantees the correctly execution of the discretion and givesome suggestion about how to choose candidate of the mediator in two modes. Finally, the author puts forward some proposal about the carrying out of the medical liability insurance,the completing of the compulsory traffic accident liability insurance and the formulating ofthe punishment measures.The seventh part “Conclusion”.On the basis of above investigating, the author concludesthe fundamental value of civil mandatory mediation, accounts the particularity in constructingthis system in china and explains how to perfect it in the future.