The Current Situation And Perfections Of "Connection Between Litigation & Mediation" Mechanism

At present, a great whiff of fever in"connection between litigation and mediation"is up in the trial system in China. The"connection between litigation and mediation"would not be the professional legal word but the shorted name for the practical manipulations, which means the lawsuit methods including the litigated mediation and the third part mediation, the administrative mediation and other out-of-litigation mediations as the disputes resolving mechanism. As the newborn thing in the judicial reforms in people's courts in recent years and the new measure according to the new situation, this"connection"mechanism had been merged and spread around the all country. In this paper, the author from the generated background and the resource of the"connection"mechanism gives the analysis of the"should be"functions loading by this mechanism. At the same time, the author exams the major models, the detail practices and the actual affects of the mechanism to introduce the current situation, the existing problem as the"it is"aspect. Through the classical cases in the courts, it also makes the positive studies and find out that the idea that the"connection"is only the insider reform in courts with the defects such as the wrong standpoint, the dislocation of guiders, the lacks of safeguard and inner disadvantages, which is essentially the breaks from the first"defense line"to the"last line"and the load-off actions to push the disputes backward to mediation or the combination. In practices, different courts had different working ways with the various and unlimited character. Therefore, the number of accepted cases is increasing since the six years reform and the high-rated of Letters and Visits with the unsatisfied effects. So the author considers that the great changes happened in the social and economic conditions and in this"stranger"society, the traditional"lines"before litigations are nearly dead and all disputes rushed into the courts and the litigation's effects would be magnified, which is the major reason of the heavy burden of judicature. Hence, the mediations outsider the litigation would be logic precondition and the practical demands. The key point of"connection"is not to find the breaks insider the judicature but the resolving of limits to the out-of-litigation mediation systematical mechanism to influence the flitter and classify functions fully. To learn from the success experience of"connection"and base on the abundance of traditional resources, we should reform the setting of organization of the mediation, the entrance conditions, the guarantee mechanism, the execution power for the mediation paper outside the litigation with the encouraging compensation and the pre-litigation mediation system to encourage the parts to choose the best mediation excluding the arbitration as the"frontier"in the new historical conditions. In this way, the out-of-litigation mediation system would be development synchronously with times and to perfect the various disputes resolving mechanism that relieve the judicial burden form the origination by the expected.