Court Annexed Mediation System And Its Mandatory Principle-a Discussion And Comparative Analysis Of Its Legitimacy

Why the Chinese Rulers focus on practice of mediation is for the purpose of harmony, which root from the "non-lawsuit"oriented value. For mandatory deviate from original intention of mediation,"free will"should be fully respected during mediation and only so it will lead to justification. The principle of justice arises from learning how to make compromises and concessions in the social life. In a sense, Consensus Mediation reflects the impartiality expected by individual. The essence of impartiality is to maintain the social survival environment, which means maintaining dignity of countless individuals. In comparison with litigation, value of mediation is oriented from respect of freedom, pursuit of effectiveness as well as"Access to Justice".The principle of free will in Chinese mediation embodies that proceedings of mediation should be initiated by the parties'consensus. However, mandatory on initiate of this proceeding does not necessarily mean that the proceeding destroy the free will. The nature of mediation determines that it should not be bind itself by a prior agreement. As an ADR method, Court-annexed mediation competes with legitimacy, which originated from the consequences adapted by society. It is hard to cleared off suspicion when mediation is backed up by jurisdiction, which imply that the result may be from judge's authority but not parties'psychological self-identity. That is the essence for mediation system to remove interferes from the public power, which should be supported and protected by legalization. Judge should adapt himself a proper role, an instructor or reviewer of agreement, to practice mediation.For pure lawsuit now is hard to satisfy the diversified needs of judicial remedy, judicial ADR is developed so as to find an alternative way of dispute resolution, which is highly valued by various countries. Theories on the separation mediation from trial system are accepted by most of countries though ADR modes are various in laws. Judicial ADR itself is different from trail but more or less is linked to the procedural regime. In pragmatic view, Judicial ADR prompts the situation of Judicial resource scarcity by mean of diverting cases, so in some sense, original intention of meditation legislations is to reduce the heavy burdens of courts and parties'Litigation cost via consultation.Nowadays, Chinese judicial ADR is still in its infancy and feel its way. That ADR practice linking up with the existing laws is fully concerned. At present, system of mediation upon authorization connected between Courts and the people's mediation committee is a main method of Court-annexed mediation and it is fruitful by observe. In Prospective View, more and new ADR modes should be allowed and encouraged and mandatory on initiate of mediation proceeding should be regulated by law. It may be admirable that Judicial ADR separate from the trail and operate independently. Meanwhile, the system of "Docking litigation and conciliation" will be established under regulation.