On The Theiory Of Party Self-governance In Civil Mediation

On the vision of the social contract theory, the parties only transfer the controlling rights of the disputes settlement procedure to the mediators. The mediation is still a self-governance dispute settlement in essence. The mediation is a kind of activity in which the parties resolve their disputes presided over by a fair and impartial party. In China, some provisions of the Civil Procedure law show a departure from the nature of mediation, showing some characteristics of the conduct of the trial, the court mediation is carried out like the judicial procedure. The mediation in China requires identifying the facts and distinguishing right from wrong in the case under the principle of voluntariness and legality, and can be hold open to the public. The self-governance of the parties is threatened. We should learn from the leading mediation rules in the world, the three principles of voluntariness, independence or impartiality and confidentiality.Voluntariness is the basis to justify the mediation and the chief principle in the mediation. The voluntariness principle of mediation contains both procedural and substantial meanings, which are the voluntariness to adopt the mediation procedure and the voluntariness to accept the results of the mediation. Many countries in the world tend to explain the voluntariness principle strictly when starting the procedure today and the legislations and practice of compulsory mediations have turned up, which reflects the judicial policy to broaden the using of the mediations and also gives rise to some controversies at the same time. Compulsory mediation calls for the procedural justice and validity. In China, the legislation on the compulsory mediations has turned up in recent years, too, but its validity has not been proved.The agreement between the parties is the first principle to justify the mediation which aims to self-determination. To get the pure agreement faces a lot of obstacles in practice. Reaching an agreement under coercion may appear in various patterns of the mediation. On the occasion that the parties negotiate with each other autonomously, the disproportion of the strength and the asymmetry of information lead to the spread of the peremptory actions. It is necessary to cover the negotiation in the shadow of law and guide the agreement to be reached according to the law judge in order to restrain the peremptory factors. There are two routes to spread the shadow of the law, one is the general route, and the other is the special route. But the coverage of the shadow of the law through the special route may damage the self-determination of the parties, the characteristic of the mediation, and create the opportunity for another form of coercion to come out. The shadow of the law must be restrained. The paradox reminds us that both the coverage of the shadow of the law and the abstinence of the shadow of the law should aim to improve the ability of the self-determination of the parties.The mediators can promote the self-government settlement of the dispute by reasonable controlling the process. Unlike the judges and the arbitrators, the mediators do not make a decision or verdict on the dispute settlement, but rather provide services like an intermediary, consultant, listeners and a shuttle diplomacy. The mediators must have diverse basic skills because of the multiple roles played by them. The regulation of the mediators to improve the quality of the mediation can be carried out on three aspects, mediator qualifications, the mediation process and the mediator responsibility. The requirements of the mediator qualification include mediation training, the law knowledge requirements, and level of education, etc. The regulation to the proceedings based on the justice stresses some kinds of disputes are not suitable for mediation and the responsibilities of the mediators to protect the weak and to promote the equal dialogue. The code of conduct and the liability of the mediators mean that the mediators have to take their responsibility when making a serious malfeasance. Giving the effect to the civil mediation in line with the basic legal theory by making using of the results of the procedure is beneficial to the realization of the final purpose of the mediation to resolve the disputes. The effects of the court mediation stem from not only the self-governing of the private rights, but also the operation of the procedure itself. From both the necessity foundation and legitimacy foundation, the court mediation may not or should not have res judicata. The normal relief to the mediation is not necessary because of the existence of agreement between the two parties, but an emergency exit to the relief is needed on the circumstances that the agreement would be invalid or could be canceled according to the law and the mediation procedure breach of the law seriously.