On Commercial Conciliation System

This thesis mainly studies the Chinese business mediation systemand its construction. Business mediation is an important kind of disputesettlement method. There are, however, more discussions and studies onthe issues of arbitration than the ones on mediation, not to mentionbusiness mediation nowadays in China, which is really a pity for thestudy of dispute settlement."Mediation" is among the most frequently used words in thebusiness world today. Before the start of civilized society, the world ismediated, evolved and developed according to the law of nature. Afterthe emergence of human society, there are the conflicts andcontradictions among the humans and the ones between the human andnature. For the need of the existence and the development, peopletends to be aware of and exercise the self-motivated mediating andmoderating activity.Today people are facing important topics such like benefits andvalue, reality and future, conflict and conciliation, etc.As the deepening of the economic globalization, the changes arisesas China's entry into WTO on the interests relationships among theinternal groups, on ways of distribution, on the identities of the peoplefrom different groups, industries and areas. Those lead to the boomingof the conflicts in our society, among which there are many belonging tobusiness disputes. Where there are conflicts, there are ways of solving,just like a lock will be opened by a key. Business mediation emergesfrom the tide of economic activity, needing an earnest research and to bedeveloped.Business mediation law has been enacted in some nations. But inChina, we can't say that Business mediation law has been enacted, wecan only say there are some articles and items concerned in the lawsystem. Facing such amount of domestic and international businessdisputes under the current situation, it is abnormal for us to stay in asituation where there are articles to follow but there is no law in thefield. To set up business mediation law is necessary and urgent as wellas feasible. It is on the basis of this kind of understanding;the writerhereby raised suggestion of the establishment of a business mediationlaw. On the study of basic features of business mediation, this thesissums up the features of business mediation from different angles andaspects: parallelly, business mediation is compared in this thesis withgeneral mediation and other kinds of mediation;business mediation iscompared and analyzed on its relations with arbitration and litigation;historically, origins of the thoughts and system of Chinese mediationare elaborated as the principle of the mediation is still useful while itgoes all the way to today;The concept "peace is the most precious" isstill a standpoint processing the realistic meaning today;by elaboratingthe procedure and method of business mediation, the development of thebusiness mediation is display while the importance of the businessmediation is shown;By analyzing current items of the laws on businessmediation, conclusions are drawn as follows: in China there are somearticles and items concerned on the business mediation in the lawsystem, but there is not a law concerned. In this regard, the writerhereby raised the proposal of establishing the law system concerningbusiness mediation. To reach this proposal, there must be a drafting oflaw with regard to business mediation. The writer studies and discussesin this thesis several ways of drafting such kind of law and delineate alawmaking blue print, namely Law of Civil and Business Mediation ofPeople's Republic of China (draft). A state without the law is like aperson without the bones. May the business mediation laws beestablished as soon as possible and the business mediation works bestrong and prosperous.The thesis is divided into ten chapters, summarized as follows:Chapter 1 Main Features of Business MediationThis chapter first introduces the mediation of the general meaningincluding concept, features and roles of mediation. The writer makes ameticulous research concerning the sorts of the mediation andcategorizes from the different angles, making people have an overallunderstanding of the system as well as a clear view on businessmediation's position in the whole mediation realm. By comparingmediation with litigation and arbitration and comparing the businessmediation and other kinds of mediation, this chapter gets a clear idea onthe main features of the business mediation. The chapter defines thecontent and extent of the mediation clearly, finds out the point toresearch business mediation accurately and makes a deep foundation forthe future chapters.Chapter 2 Historical Cultural Origin and Development ofChinese Mediation SystemThe principle of mediation bears the long and deep history culturalorigin in China and Confucius, Lao Tze and other ancient sages did allmake statements on the mediation. Each dynasty in Chinese history hasthe system of mediation which is continuous and also developing. Theconcept "Peace is most precious" bears not only profound historymeaning but also important realistic meaning which shows that themediation principle and spirit is deeply rooted and newer with time inChina. With regard to this, the writer's summary up three points asfollows: "Peace is most precious" is an ideal for the mankind to pursue;it shows the sign of a harmonious society;and it is the premise thatsolves the conflict. Today, as we are in the initial period of setting up abusiness mediation system and in a period to establish the harmonioussociety, we shall always promote "Peace is most precious".Chapter 3 Parties Involved in the Business MediationParties involved in business mediation means natural person, legalperson or relevant organization having direct relation with businessdispute who participate in the mediation procedure with own name. Inthe broader sense, parties involved in the mediation include party in thepure mediation organization as well as include the party involved in themediation under litigation and arbitration procedure. Of course, onlyduring the period of mediation, can the parties be named as partiesinvolved in business mediation in later two kinds of procedures, andotherwise they are still parties involved in the litigation and arbitration.The writer holds that the parties involved in business mediation is thekey in the mediation procedure and shall not be neglected. This part ofissues, however, is seldom mentioned in the numerous research workson the dispute settlement which is really a pity. The writer discusses theconcept of party involved in business mediation, the categories of partyinvolved in business mediation;the law idea of party involved inbusiness mediation;the right and the obligation of the party involved inthe business mediation and how to discover potential party involved andto turn him into party involved in business mediation.Chapter 4 Business Mediation Exercised by China Chamber ofInternational CommerceThis chapter elaborates the characteristics, scope, basic principlesand mediation organizations, mediators of business mediation exercisedby China Chamber of International Commerce. The chapter alsointroduces mediators' qualifications, mediators' roles, mediators' codeof conduct (ethics, code of conduct for the mediators) and mediatingskills of mediators. The writer holds that mediation under the Chamberof Commerce is the most representative business mediation, which bearsthe pure independent mediation procedure not belonging to any otherorganizations or other procedures. This is the essential differencebetween the above-mentioned mediation and other business mediationsuch as those in litigation or arbitration. Therefore, business mediationunder the Chamber of Commerce shall occupy a unique and importantposition in the business mediation field.Chapter 5 Procedure and Method of MediationThe procedure of mediation is the operating rule obeyed by themediation organization, mediators, the parties involved and otherparticipants involved in the mediation. This chapter mainly introducesmediation rule of China Chamber of International Commerce, therepresentative mediation organization in the field of business mediation,which includes the receipt of cases, appointment of mediators, someproblems that may occur in the mediation process, termination of themediation procedure and fee collection for mediation etc. As for theway of mediation, the common mediation methods such as face to face,back to back and mixture of the two are introduced as well as someother ways of mediation such as the joint mediation specially hosted byChina Chamber of International Commerce, some new ways ofmediations such as internet mediation, on-line mediation etc.Chapter 6 Business Mediation under Chinese ArbitrationMediation under arbitration is not a procedure of independence andit has its own features. In this chapter, the difference between themediation under arbitration and other kinds of business mediations,especially the difference with the independent business mediation isintroduced. To combine the arbitration with mediation is a hot topic todiscuss and the writer raises his own opinion on this topic. To combinethe arbitration with mediation is not only a combination between twokinds of methods in arbitration, but also a combination between twoindependence procedures of arbitration and mediation when handling adispute. In Arbitration Rule version 2005 and Mediation Rule version2005 there are explicit provisions on this issue which makes this"eastern experience" have more abundant contents. The thesis explainsby a concrete case as example. In this chapter the legal effect of thebusiness mediation under the Chinese arbitration on international casesis also discussed and foreground of the business mediation is reviewed.Chapter 7 Business Mediation under Chinese CourtThe business mediation under the court, namely the mediation inthe litigation is also not a kind of independent mediation. This chapterstudies the characteristics and advantages of the business mediationunder court;compares the difference between the conciliation in thelitigation and court mediation;carried on a comparison on businessmediation in court with the other business mediation;introduces theorganization and procedure of the court mediation;elaborates themediation decision of the court and its legal effect and views theprospect and development trend of business mediation under court.Chapter 8 Relevant Provisions in Existing Laws on BusinessMediationRelevant provisions on the procedures are in laws such as Law onCivil Procedures, Arbitration Law, etc. Relevant provisions on the civilright of disposing are in laws such as Common Rules of Civil Law,Contract Law, etc. Relevant provisions on the civil right of disposingare in laws such as Law on Sino-foreign Equity Joint Ventures, Law onSino-foreign Cooperative Joint Ventures, etc. There are also mediationrules of civil mediation organizations and the legal effect of thebusiness mediation, Settlement Statement of mediation, Settlementagreement of mediation and the legal effect of the arbitration clause inthe mediation agreement.Chapter 9 International Origins of Chinese Business MediationSystem.In this chapter it is introduced on provisions of internationaltreaties and international common practice on business mediation,provisions of international organization on mediation. The Chinesebusiness mediation organization has entered into a series of mediationcooperation agreements with other mediation organizations all over theworld which constitutes a part of the practical field of Chinese businessmediation and also have certain roles on the establishment of Chinesebusiness mediation. The writer does a most extensive collection andresearch on the effects of international business mediation theories andpractices on Chinese mediation, on the wide-spread of ADR, and thewriter puts forward how to draw experiences from internationallyadvanced methods and to realize the native use of foreign advantages soas to promote the development of the Chinese business mediation.Chapter 10 Push Forward Mediation Lawmaking Progress andStrengthen Business Mediation SystemThere are some problems in existing laws as although someconcerning provisions exist on the issue of business mediation, as theyare indefinite, disunified, disperse and unsystematically. And as socialmediation idea appears weak, market of business mediation is notprosperous, the Chinese social credit system is still not sound, thetrustworthiness character of the parties involved needs to be raised, andthere are other competitive ways of solving disputes, the businessmediation is still small and weak. The writer discusses the main ways tobreak through the bottleneck of development of the business mediation:namely, to set up scientific development view, to strengthen marketview, to handle affairs according to the objective rules, and to reform onthe system and mechanism of mediation. The most substantial problemin establishing business mediation system is to carry on mediationlawmaking. The writer holds that the mediation lawmaking is necessary,possible and urgent. Mediation lawmaking will benefit society stabilityand match the demand to set up a harmonious society, benefit thedevelopment and perfect of market economy, benefit the strengtheningof sound law system, be advantageous to being in line with internationalnorms and face various challenges after China's entry into WTO. Thewriter inquiries into a few modes of mediation lawmaking anddelineates a lawmaking blue print, namely Civil and Business MediationLaw of People's Republic of China (drafted).I am engaged in the practice and research works for businessmediation in a long period of time. From the beginning of 1990s, I havebeen in arbitration and mediation organs and managed more than 300pieces of arbitration or mediation cases, personally experiencingdevelopment process of the business mediation. I always have a wish tomanage the related problem of the business mediation and to putforward the thoughts of establishment of business mediation.I reported my ideas with my tutor, Professor Shen Sibao and heapproved gladly my idea and encouraged me to develop well on thisthesis. Professor Shen is my sincere friend and respectable teacher. Hisnoble personality, legendary life, broad sense of thoughts and profoundknowledge attract my admiration, Other teachers, such as professorWangjun, professor Jiao jinhong professor Huangyong and professorDingding also gave me many valuble directions , these inspires me agreat deal, holding me the motive to complete this thesis.I produced this thesis after grasping a lot of data concerned and bymeans of earnest thinking and frequent modification. Because of mylimited knowledge level, however, there will be surely some mistakes inthe views and dissertation. It would be much appreciated if all theteachers and colleagues who read this thesis be frank to give advice andto correct my wrong views. By offering this thesis I hope I can make ahumble theoretical contribution to Chinese mediation.