On The System Of Family Mediation

The eternal pursuit and theme of human are family happiness and social harmony. Mediation, as a method or procedure which can assist the party to ponder rationally, consider carefully and settle the dispute amicably and cooperatively, has a significant value in the field of family law. This PhD. dissertation has analyzed from basic theory, practice development, institutional norm and so on. Furthermore, it has also advanced some comprehensive proposals of family mediation system of China in order to consummate mediation’s properties and functions, practice pattern and model development and some other relevant systems in China.Besides the introduction, this PhD. dissertation consists of four parts, including eight chapters, about 230 thousands words.Part one:basic theory of family mediation. This part explains family mediation’s concept, properties and function on the basis of its subject and object.Chapter I:object theory of family mediation. Family dispute which in particular range is the object of family mediation. There is not a common understanding between theory and practice about the concept of family dispute and which family dispute is belong to mediation category. The author argues that family dispute means the disputes occur in marriage or family. Disputes including marital disputes, parent-child disputes, adoption disputes, maintenance disputes, child custody and visitation disputes and some other disputes occurring among family members can be applied to by family law. Its characteristic is as follows:bases on the principle of identity; irrational; specifics; live by private interest combining public welfare. Family dispute is s special dispute type; both of the entity and the procedure are specialized. Simultaneously, this dissertation has also discussed the range of family mediation object, especially domestic violence and annulment of marriage.Chapter II:subject theory of family mediation. This chapter analyzed the pattern of participant to family mediation and its role. Firstly, it discussed the parties’position in family mediation. The author argues that the party to family disputes could "control" the procedure and consequence of family mediation which includes that ingress and egress of family mediation mechanism of one’s own accord, act on one’s own in the course of family mediation and consensus of mediation consequence and all this can embody its position. Secondly, it expounded the specification of family mediator. The author holds that the family mediator ought to center the party around, and its main duties are helping the party overcome barriers and ensuring impartial consultation. Moreover, this chapter analyzed the qualification requirements of family mediator, rules of family mediation practice, code and pattern of conduct. Thirdly, it dealt with the offspring whether and how to participate in family mediation and relevant participative condition in China. Fourthly, it discussed the supporting staffs who take part in family mediation.Part two:the practice type and mode of family mediation. This part analyzes the practice of family mediation on the base of different types of family mediation and family mediation models.Chapter III:the type of family mediation. There are sorts of types of family mediation in practice, and the development of mediation types in different countries and areas are also different. For instance, the earliest rise of family mediation practice in its development in western countries is divorce mediation whose objects are divorced couples. However, child custody and visitation mediation and adoption mediation are obtained comprehensive support by judicial. Nowadays, elder mediation and marital mediation are rising slowly. Furthermore, different types of family mediation are closely related to the native idea of law and institutional rule. This dissertation has expounded divorce mediation, child custody and visitation mediation, marital mediation, elder mediation and so on. In the meantime, it also discussed the distinct content and properties of type of family mediation between home and abroad.Chapter IV:the mode of family mediation. There are kinds of family mediation modes in practice as the development of family mediation system. Each mode has own particular idea and theory, special method and technology and intervention mean. Coherent and clear practice mode is conducive to enhance mediators’cognitive such as "what to do" or "why do this", and facilitates to boost comprehend about the scientific of mediation nature and its contents. This dissertation has expounded some main mediation modes of eastern and western through comparative study, analyzed the conflict between family mediation modes’theory and practice, and the significance of diversified mode, the nature of mediation and divisive of family mediation modes.Part three:extraterritorial family mediation. This part strives to do comparative study of the family mediation legislation and practice in some foreign main countries and areas. Chapter V:the legislation and practice of family mediation in western countries. The family mediation system rose in the seventies of the 20th century, and then swept across Europe and Oceania. This chapter expounded the condition of family mediation system of Americas, Europe and Oceania, and chose America, Canada, Britain, France, Australia and New Zealand to Specific analyze. The family mediation system in all these countries has more developed, to a certain extent have realized specialization, professional and institutionalized.Chapter VI: the legislation and practice of family mediation in eastern countries. Mediation is always an important means to solve disputes. However, since 20th century, as the development of modern Legal system, different countries and areas experienced different family mediation styles. This chapter chose Japan(Korea), Hong Kong, Macao and Taiwan to introduce own family mediation system. For instance, Chotei in Japan and family mediation trial lately is arising in Hong Kong and Taiwan.Part four:family mediation in China. This part strives to retrospect and inspect the history and status quo of Chinese family mediation system, and put forward some proposals to establish the specialized family mediation system.Chapter VII:the history and present condition of family mediation in China. This chapter summarized the family mediation in China at various times. Firstly, it analyzed traditional folk family mediation; secondly, it inspected the present condition of family mediation in China; thirdly, it compared the traditional and modern family mediation system between China and foreign country; fourthly, it rethinks profoundly the deficiency of modern family dispute mediation.Chapter VIII: the establishment of specialized family mediation system in China. Firstly, this chapter analyzed the significant of establishing the specialized family mediation. Establishing the specialized family mediation is necessary because the condition is discontented. Secondly, this chapter advanced some concrete suggestions to establish the specialized family mediation system. On the idea of establishment, we ought to cognize the chrematistics of family dispute, the nature and special function of family mediation. On the mode chosen, we ought to emphasize the significant of mode chosen. On the concert contents, we ought to strive to realize the independent of mediation procedure, professionalize of mediation subject, specialization of mediation object, specialization of mediation contents, normalization of mediation procedure and standardization of mediation system. On the Tamping social foundation, we ought to realize the harmonious and assorted system, and through educational propaganda to strengthen the masses of the people to acquaint, identify and accept the family mediation system.The academic value and innovation of this dissertation are as follows:Firstly, the dissertation has approached the nature and function of family mediation in terms of family law. Family mediation is not only simple to mediate family dispute, it should be a mechanism which can solve family dispute friendly and amicably. The particularity of family dispute displays the mediation has an important value in family law; the deficiency of family litigation and the peculiarity function of mediation leads to the rising of the modern professional family mediation system.Secondly, the dissertation has made out the difference of Chinese tradition, contemporary and occidental family mediation system. It holds that the modern family mediation system in China is different from Chinese tradition and occidental contemporary. We should deepen the reorganization of the modern family mediation system in China by ancient and modern Chinese and western comparative study.Thirdly, the dissertation has made comparative studies among foreign countries, especially the social background and system contents of the development of family mediation in order to do some efforts to perfect family mediation system in China.Fourthly, the dissertation made analysis to the nature and function of family mediation from the foundational theory and practice operation, especially the mode or pattern is emerging in China for the first time.Fifthly, the dissertation put forward the established conceives of professional family mediation system in China from the idea and content of family mediation, especially the independent mediation procedure, the same of mediation organization and the development of mediation mode, all of these are original in China.