On The Mediation System Of The Court In China

The court mediation system occupies an important status in our country's civil action system, this not only merely displays in that it is the basic principle regarding to the regulation of ?civil procedure law)) , but also the leading operative way of the court's civil judicial authority all the time. With the gradual maturation of market economic system, the mediation system is also getting into the challenges of the new social terms and conceptions,In the judicatory practice, the principal of good will and legality couldn't get the respect of people, and quite a number of courts unilaterally emphasize the ending rate through mediation, which makes some judges prefer to mediate while ignoring the parties' procedural and substantial rights. Some would even force the parties to accept the mediation. All the above make us suspicious of the necessity and the system's framework of mediation.In the ancient times, the mediation wasn't based on the party's goodwill but on force. However, the modern mediation should respect the party's goodwill and considers it as a principal. Regarding to the various master, the mediation could be sorted as follows: self mediation, religion mediation, country mediation and government mediation, Country mediation is a semi-government form, while the government mediation has the same meaning of judicial or litigation ones. Though there are differences between various mediations, they have one thing in common that "the point of battle isn't made to ensure or manage one's right but to resume the ideal harmony" .The court mediation system dates directly from the judicatory system of Shan-gan-ning district and other liberated areas during the Resistant war against Japan. During that time the mediation system includes four forms such as self-mediation > group-mediation, government-mediation and judicial mediation. Only the last one is in the scope of litigation mediation, which develops to the famous Ma Xiwu trial pattern, while the others belong to the types beyond litigation. The court mediation mainly comes through three stages: "take mediation as main method" , "emphasis on mediation" . " mediation on good will and legality " .The {(civil procedure law)) regulates that the principals of mediationinclude good will and legality .However, theorists dispute about whether clear facts could be the principal of the court mediation. The author doesn't consider it as a mediation principal, for the reason that it is the premise of judgment. In addition, the highest court's ({provisions about the problems of the court mediation)) ( ((provisions)) for short in the context hereinafter) stipulates secrecy and agility as the other two principals of the mediation. Neither does the author agree with that, for the reason that the mediation is the pattern the parties agree with, so whether it's public or secret is depended on the parties as well. There shouldn't be any rigid regulations; agility is the court mediation's character and not supposed to the principal. Regarding to the judicial level of mediation, it should be restricted to the first instance. In the respect of applicable stage, the author consents to the ((provisions)) that the mediation could be carried through before the answer period as long as the parties agree to. Since the mediation embodies the parties' agreements, only if the agreements don't violate the forbidden provisions, they should be ratified.The court mediation has the litigation value. According to the ((law annuls of China)), though the rate of civil cases ended by mediation from 1991 to 2000 is descending, it still gets the comparative majority to the ones ended by judgment. This illuminates that the mediation has its litigation value all the time: first of all, as the complementary of judgment, the mediation is simple, speedy and agile when solving a problem; second, the legal spirit embodied in the mediation system is consistent in the directions of civil trial reform; third, although the mediation procedure is fairly agile comparing to the judgments, it doesn't mean that the effective scope of law has been shrunk; fourth, the mediation has a profound literal background and unique historical requirements that propel it to develop into a system today.However, the author points out the main questions of Chinese mediation system: first of all, mediating shouldn't be regarded as the principal of civil litigation; second, the principals of the court mediation aren't proper; third, the emphasis on mediation makes the good will principal impractical. The judge's dual identities lead to the impracticability of good will principal. In the trial, some courts ordain the arrogated index of mediation, which results in the impracticability of good will principal. The reason for the arrogated mediation is the mediators' dual identities.The theorists have three different points of view about the mediation.