Introspection And Drawing Lessons: Probing Into The Reform Of The Court Mediation System

In our national trial tradition, mediation plays an important role and exerts active function of resolving disputes. So it's called "the east experience" by foreign scholars. However, with the social conditions' great change and the import and establishment of the idea of just proceeding, people come to suspect our national traditional mode of mediation combined with trial. And the mode's various defects in practice make people more and more discontent with it. Because under the mode the double character-judge mixed with mediator not only can't make the mediation system basing on the principle of voluntariness and legality reflect people's desire of intention autonomy and rights protection, buy lead to litigation delay and to trial justice being queried. Contrast with our court mediation system's embarrassing situation, the development of western countries' "Alternative Dispute Resolution" makes their mediation system show flourishing appearance. In the continent law system countries, most of their civil procedure laws definitely provide it's the judge's duty to facilitate the litigant to mediate, and actively initiate the judge's positive function in the mediation. Although similar provisions haven't definitely appeared in Anglo-American law system countries' legislation, the intervention of judge's function and power in pretrial proceeding actively helps to arrive at the conciliation agreement between litigants. The mode of mediation combined with trial is used in western countries' mediation, but what's different from ours is that they definitely separate mediator from judge that attains the mediation goal and guarantees justice. This beneficial experience is undoubtedly a remedy in the reform of our court mediationsystem.On the basis of our national conditions, the author draws lessons from foreign successful experience, and tries hard to seek a reforming way for our court mediation system, in order that our court mediation system glows with vigorous look and exerts more positive function in relieving our national courts' pressure over the enormous rising disputes. By these, the author gives practical advice on the amendment and perfection of Civil Procedure Law.