Research On System Of Mediation Of The People's Court

Since the Reform and Opening-up, the court's judicatory has made great progress with the advancement of China's legal construction. As an important part of court trials, system of mediation of people's court has also experienced unprecedented ups and downs. Through the rationale analysis and research of 30 years'transition on court mediation, we have a deeper understanding about it, so that we will have a clearer thought on its development and perfection.This paper concerns the system of court mediation through inner principle and external practice respectively. On inner principle, the author reveals the reasons of system and society by the change of justice data. Furthermore, combining with the idea of rule of law, the author demonstrates that the court mediation conforms to the requirement of rule of law and its existence in modern society has entire validity and rationality. On external practice, the author sees through the function modes and the existent problems of court mediation with my personal experience in a primary tribunal in March,2010. After viewing theoretically and practically, we can find out defects of the court mediation and take measures to improve it.Through the statistical data of total closed, total mediation closed and mediation closed proportion of the civil cases of first instance among 1980 and 2010, we can divide the 30 years into 3 stages:1980 and 1989,1990 and 2003,2004 till now. During this period, the basic criterion of court mediation has changed from "Emphasis on mediation" to "Mediate when it can mediate, judge when it should judge" to "Mediation prior, and mediation and judgment combined." The changes are led largely by the policy variation of China, yet have permeated the influences of transformations of judicial concepts, socioeconomic conditions, parties'and judges' attitudes, etc. The acting forces of these elements are different in different times, therefore the results they lead to are quite different.On the basic theory level, the court mediation has been criticized yet does not die out, which means it has inner legal basis, value demand and legitimacy. The court mediation ensures the procedural justice with valuing litigants'autonomy, admitting litigants'subject statuses and realizing litigants'wills of free expression, advances the dispute settlement with pursuing justice of essence, and creates social norms with applying common sense, conventions and general reasons combining with handling specific cases. Different from the traditional mediation, the court mediation locates its value in freedom and efficiency. Relying on the value the court mediation forms the legitimacy:reflecting free wills of the litigants, guaranteeing the legality of dispute settlements, pursuing the convenience and realizing the privacy.On the practice level, the case in a primary tribunal owns a typical significance on the functioning pattern of the court mediation. After the detailed introduction of the divorce case, we can see that judges use several skills in mediating, mainly including six points:chitchat to shorten the distance with litigants, convince with emphasizing on the aspect of sense, deter by using law, reach an agreement with people of easily communicated, rely on other powers and make decisions collectively. Besides, this case has revealed the problems of court mediation, includes the identifications'superposition of trior and intercessor of the judge, the invasion of litigants'rights of free choosing mediation procedures, the deficiency of court mediation agreement and the high standard of judges'mediation rate. These problems have seriously affected the normal working of the system of court mediation.On the perfection of system, we can take measures from the two aspects of system design and participants in the system. To improve the system design, we can diversify the present mode of "combining mediation and judge together," which means that we implement different styles in primary tribunals, basic people's courts and higher people's courts; we should cancel the principle of "discover the facts, distinguish right and wrong," explicate the principle of legality and add the principle of privacy; we may also confirm the efficacy of the court mediation agreement. To make participants in the system better, we should ensure the rights of choice in the civil procedures of the litigants and change the performance evaluation standards of the judges.