On The Recollection & Reconstruction Of The Court Mediation System

The swift development of Market Economy and the rising wind of Alternative Dispute Resolution (ADR) encourage us to reconsider the court's mediation system. It is more necessary in China in which mediation is well-established and Harmonious Society is being constructed nowadays. However, court's mediation is used restrictedly and has brought many complains because of its structural and technique limitations. The sticking point of court's mediation that court's mediation is considered as a manner of judicial power erodes and sets off the essence of court's mediation. As an autonomous dispute resolution, court's mediation doesn't conflict with judiciary. It is essential that we abandon the mode of judicial power and regress the party-oriented in order to establish modern court's mediation.This article is mainly divided into four chapters.The first chapter is about the legitimate basis of court's mediation system. The author defines the court's mediation system. As an autonomous dispute resolution, court's mediation is different from judicial mediation. The relation of court's mediation with the civil mediation, judiciary and judicial conciliation is defined. The legitimate rationale of court's mediation is party-oriented, not the adversary system. The court's mediation system has multiple functions: dispute resolution, procedure participation and rules creation.The second chapter is about comparatively reviewing court's mediation. The article elaborately analyzes the court's mediation and judicial conciliation of Japan , Germany, Taiwan, America and Hong Kong and gives us six impressions.The third chapter is about the defects of our court's mediation system. Its fundamental flaw that court's mediation is considered as a manner of judicial power results in many wrong doings. The reconstruction of court's mediation system can resolve disputes more and adapt to the development of ADR.The fourth chapter is about the establishment of court's mediation system. The reconstruction of court's mediation system should base on the separation of mediation with judiciary. We should give up the wrong theory of the manner of the judicial power, deal with mutual relation of mediation with judiciary correctly, envisage the coerce in the court's mediation, definitude the force of mediation agreement, extend the relief mechanism, regulate mediation term and widen the scope of confidentiality in mediation.