The Construction Of Court Mediation In The Procedure Before Civil Trial

The court mediation system has been taken seriously for our country judicature practical realm and played an influential role in the process of solving civil action dispute, however, reforming the system of uniting mediation and trial in the court mediation tends to be imperative because the court mediation system of uniting mediation and trial can not meet the needs of developing civil action dispute and has exposed many malpractices. In order to make up the malpractices of uniting mediation and trial and display the function of court mediation, the theorists has proposed the pattern of separating mediation from trial in court mediation system. This article carries out the analysis on the compatibility between the procedure before civil examines and the court mediation, and proposes that court mediation before civil examines in the procedure construction is feasible. Simultaneously, the author proposes the procedure of constructing court mediation before civil examines in order to make contribution to the reform of future court mediation, based on acknowledging their respective advantages after the analysis about the two different system patterns of"uniting mediation and trial"and"separating mediation from trial". The paper's main body is divided into four parts.The first part is the compatibility between court mediation and the procedure before civil examines. Court mediation is one of the ways for civil dispute's solution, but procedure before civil examines is the procedure that is done to civil cases before court hearing. The two seem to have no relation, but its intrinsic value is interlinked if carefully analyzed. Their purposes are both for reducing the court hearing's pressure and maintaining litigant's benefits better, therefore, there exists compatibility between court mediation and the procedure before civil examines. After the analysis, the court mediation is feasible to be integrated in the procedure before civil examines and the procedure before civil examines also has the tolerance to the court mediation system; therefore, the author believes that building the court mediation system before civil examines has the feasibility.The second part is the present situation in our country of the court mediation system of uniting mediation and trial. Our country adopts the method of uniting mediation and trial in the concrete utilization of court mediation. In that method, the judge plays dual roles in uniting mediation and trial. The judge is not only the judge but also the host of court mediation. The judicial authority and the mediation power superpose, and the judge leads the advancement of court mediation. Although this mediation way has the convenient merit, it has already exposed many malpractices especially along with civil action's development, because superposition of the role of judge is very easy to cause the phenomenon of compulsion mediation or disguised forceful mediation. Therefore, the court mediation of uniting mediation and trial already doesn't suit the need of the development of civil action in our country, and the court mediation needs to carry on the reform.The third part is the analysis of the system pattern of separating mediation from trial. The system pattern of separating mediation from trial is the goal of court mediation reform that the educational world has been appealing for a long term. It aims in separating court mediation from civil trials, making court mediation an independent procedure outside the procedure of civil trials through the establishment of system of special coordinator separated from the role of judge. It thus causes the separation of the judicial authority from the mediation power, however, simple separating mediation from trial will increase the cost of lawsuit, extending the deadline of lawsuit, waste lawsuit resources and increase the litigants'burden, which does not conform to the lawsuit economy principle and cannot truly display the highly effective and convenient superiority of court mediation. The idea of separating mediation from trial has certain rationality, but seeking adjusting ways and overcoming the malpractice of pure separation are necessary in order to realize the true goal of separating mediation from trial.The fourth part is the detailed design and superiority of court mediation procedure before civil examines. The author believes that combining the procedure before civil examine with court mediation system is what can be considered as the choice of system pattern when our country carries out court mediation system reform. Through constructing court mediation system in the procedure before civil examines, the mediation power and the judicial authority are separated and the judge before civil examines plays the role of coordinator, which to a certain extent also has safeguarded the authority of court mediation. At the same time, attention must be paid to maintain coordination with the civil trial and the people's mediation when constructing the court mediation system pattern before civil examines. The author believes that this system pattern has the following superiority: on the one hand, it can make up the malpractice existing in the system pattern of uniting mediation and trial, and help to realize the separation of examines from mediation. The judge no longer has the dual roles and the mediation power and the judicial authority are separated, which effectively maintains litigant's legitimate rights and interests; On the other hand, the limited separation of mediation from examines can the avoid malpractice existing in the pure system of separating mediation from trial, such as lengthening the time of lawsuit and increasing the lawsuit cost, and thus help to realize the court mediation's convenient and the highly effective function.