| Court-annexed mediation is one of kind of Alternative Dispute Resolution,as for China,the limitation feature of the court-annexed mediation is endowed with additional local significance—— a dispute-solving mechanism which connecting litigation and non-litigation.As the diversified dispute resolution mechanism is promoted to the height of the national governance system,since 2004,in order to play the main role of courts in building diversified dispute settlement mechanisms,the Supreme People’s Court(SPC)has implemented the court-annexed mediation across the country as a mode of connecting litigation and non-litigation.More than ten years have passed,how is the court-annexed mediation working? What results has it achieved? Or has something changed? These questions have not been clearly answered by the theoretical and practical fields of law.Because of these,this article attempts to take the court-annexed mediation as the research object,through the rise and fall of the basic court-annexed mediation process to interpret its system,function,shortcomings and reconstruction,in an effort to answer these questions,at the same time through the field material for system design and system transplantation in operation process of the grass-roots court to explain the rationality of the localization of the culture.The value of this research lies in that it can provide empirical experience for the theoretical problems of system design,legal transplant and localization,as well as it provides theoretical basis for the reflection on the court-annexed mediation in practice.This paper finds that in the early stage of the implementation of the court-annexed mediation,due to the limitations of the cognition of system change,the design of the court-annexed mediation is more of the ought to be characteristics.When it is put into practice,this system encountered resistance from the local social structure and it became an actual system which is opposite to the system.Such a realistic system not only doesn’t conform to the original intention of institutional reform,but also had negative effect on the performance of the judicial function of grass-roots courts,and thus deviated from the judicial reform’s trial-centered goal and the original intention of diversified dispute resolution mechanism.In the context of this reality,in recent years,some grass-roots courts have been taken a new approach and boldly explored ways to remove non-litigation disputes from the courts and participate in the establishment of a diversified dispute settlement mechanism which based on people’s mediation outside the courts.This paper holds that in the reality of building a country ruled by law in China,courts should take trial as the center to play the judicial function,and non-litigation dispute resolution mechanism should be carried out on the basis of the traditional people’s mediation system.At present,the grass-roots court weaken the function of the court-annexed mediation model,moved the litigation and non-litigation cohesion platform out of the court,depended on the people’s mediation system,participated in the practice of construction of diversified dispute settlement mechanism actively,which guaranteed the central work of the court work,at the same time,effectively promoted the operation of the local people’s mediation system has realized the court involved in multiplex dispute resolve system reconstruction.This move is in line with the direction of judicial reform and has injected vitality into the people’s mediation work;it is an experience worth spreading.This experience shows that the design and transfer of the system should be combined with local resources in order to generate a new system that conforms to social reality and has vitality.The thesis includes 5 parts.The first chapter "the system design and change of the A district court-annexed mediation from the perspective of local knowledge " introduces the background in the A district court-annexed mediation mechanism,and through the analysis and evaluate the text for the court-annexed mediation system,while pointing out that the court-annexed mediation had been given a lot of functional expectations,this paper analyzes the threshold characteristics of the court-annexed mediation as the connection mode between litigation and non-litigation and shows the operation status of the court-annexed mediation in practice,points out the court gives so many functional expectations on this mechanism,and at the same time it can be as litigation and non-litigation because of the characteristics of limitation,from this chapter it reveals that the court-annexed mediation system has problems in the practice of poor internal organization and the deviation between institutional text and practice.Chapter two "the action strategy of mediator and mediation participant in the court of District A " through the perspective of power and the action strategy of mediators and mediation participant,this paper investigates the power game among mediators,judges,parties and their agents,and analyzes the variation of the court-annexed mediation in the process of solving disputes which was due to the court’s field and organizational structure.The field of the court-annexed mediation is the court,which is still the context constructed under the organizational structure of the court.It is different from the mediation context in the general social field.The action strategies in the court field are subject to the organizational structure of the court.Therefore,mediators and mediation participant consciously or unconsciously construct action strategies that are compatible with their identities,status,goals and interests in the mediation process,and use their dominant power in the mediation process to influence the direction of cases.On the one hand,these action strategies show the integration and influence of the organizational structure of the court-annexed mediation;on the other hand,they also reflect the drawbacks of the court-annexed mediation.The Third chapter "the marginalization and solution of the court-annexed mediation in District A" with the data and field materials,the paper analyzes the reasons for the marginalization of the court-annexed mediation in District A court.Besides,the paper also gives a theoretical explanation of the reasons why the mediation still exists.Under the circumstance that the function of the court-annexed mediation is not good,District A court has reconstructed the court-annexed mediation in combination with the implementation of the complicate-simple division mechanism,but the result of the reconstruction was that the court-annexed mediation became more marginalized.In this situation,the successful litigation source management mode of Chengdu courts provides new ideas for courts to participate in the expansion of diversified dispute settlement mechanism.This reconstruction system which relies on local resources has solved the problem of the court-annexed mediation and made the court find the right way to participate in the diversified dispute settlement mechanism on the premise of insisting on trial as the center.Chapter 4 "reflections on the court-annexed mediation in District A Court"analyzes the court-annexed mediation in District A from the theoretical perspective,points out that the court-annexed mediation is one of the third areas of civil mediation,so the court takes it as an important mode to participate in diversified dispute resolution mechanism.However,as an artificial system,court-annexed mediation has certain defects that hinder the interaction between domestic law and folk law,hinder the good cooperation between official and non-official personnel in the third field,which results in the failure of the function of court-annexed mediation to reach the expected goal.According to the top-level design of China’s judicial reform,Chinese courts must adhere to the principle that the trial should be the central work in the court field.The court-annexed mediation cannot become the central work of the court in the court field.Any deviation from this center will hinder the process of judicial reform.China’s people’s mediation system has a profound traditional cultural foundation,rich practical experience and reliable organizational guarantee.Therefore,the development of the court-annexed mediation should be based on people’s mediation.The reconstruction of the court-annexed mediation means the transformation of the mode of the court’s participation in the diversified dispute settlement mechanism,the court should participate in the non-litigation Dispute Settlement Mechanism which based on the People’s mediation mechanism with the "embedded mode”,relying on the local resources of mediation by the people,to truly achieve the "non-litigation Dispute Settlement Mechanism in front of" requirements.In addition,in the process of deepening the diversified dispute settlement mechanism,the court has its own boundary,it is necessary to recognize the limitations of the court,which can not only guarantee the judicial function of the court,but also help to form a benign co-construction,co-governance and sharing pattern of diversified dispute settlement mechanism.The conclusion briefly summarizes the three main points of this paper: first,there is certain rationality in the transplantation of the court-annexed mediation;Secondly,there is inevitable that the court-annexed mediation meets the crisis of legality in practice;thirdly,there are various modes for courts to participate in diversified dispute settlement.The author finally shows that when the idea of harmonious society become a social consensus,the settlement will become the preferred way of dispute resolution,the organization structure of the court which centered on trial will be transformed by the organization structure which is centered on the settlement,by this time,the court mediation will no longer be annexed or auxiliary work,but it is the central work as well as the trial. |
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