A Study On Civil Individual Mediation

The study of the way of dispute settlement in rural areas is more concerned about the academics now.Because China is vast in territory, different type of villages formed different type of dispute settlement mechanism. The settlement of civil disputes of the village Chuancun where the author survey mainly depends on individuals. The individuals must not be old nor be of high prestige, as long as both sides acknowledge them. This type of mediation is purely civil in nature, without any organizational backing, so I call it civil individual mediation.By way of comparative analysis between the urban people's mediators and mediators in Chuancun, we found that people's mediators of urban neighborhood committees, to the general impression is our neighbor: retired Aunt Wang. Her educational level is not high but is eager to help others. In sharp contrast to this image is that the mediators in Chuangcun are community elite. The civil individual mediation of chuancun is also different from the Gentry mediation in the history of China. By comparison, we can see that the civil mediator in Chuangcun did not force their junior through seniority like family elders, neither they give lessons to others through knowledge and moral, being like the Gentry in ancient china.The mediator in Chuancun do not like People's mediators in Mao Zedong era, who change all the disputes into political problemes(at least in discourse on the case), and suppress the dispute by state force under the name of "national interest". They do not like some judges who often abuse the power to mediation. The mediators of civil individual mediation rely mainly on their social prestige, personal charisma and ability. Seeing from the materials we survey, all the mediations are free, and many mediators have a opinion that their work may offend the litigants. So on the surface, their work is very time-consuming, but can hardly get any benefits. All the mediators stress that their mediation work is out of good intentions and do not want to make the issue worse. I personally think that good intention is essentially a sense of responsibility for their family, friends and communities. In the process of mediation, the mediator can establish good relationships with the parties, and the work can also help themselves enhance their social prestige. In a traditional acquaintances society, this is helpful for their development in community. In the respect of self-identity, mediators'sense of self-identity and self-evaluation are relatively high. They have a high sense of moral superiority and self-confidence, and all of the mediator have a very affirmative attitude towards their work.In the type of mediation cases, we find that many dispute of civil individual mediation have characteristics of urgency, emergentness and acute conflict. Compare with the Court's substantial debt disputes, the cases of civil individual mediation are seldom debt disputes. This phenomenon is closely related to people's sense of law and the nature of the community of Chuancun.Compared with the judicial process, the process and the principle how mediators come out are different that of judges in judicial procedures. The former follow the principle of familiarity and trust, but the latter follows the strange and avoided principle. Generally the number of mediators is not static, depending on the development of specific cases and issues, but the number of the bench are clearly stipulated in writing by law. Generally the number of mediators is even, as to the two parties can reach a balance, but the number of judges must be an odd number in order to be facilitate to vote. The court generally follows the passive principle of"No Appeal, No Trial".Mediators are more active, or it is hard to say it is active or passive, because they come out naturally with the development of events. Civil individual mediation can be roughly divided into two basic types: the mediated type and representative type, but no matter which type, both parties seldom meet each other and the mediator ran back and forth between the two parties, respectively and unilaterally contacting with the parties. That the role of the mediator is similar to a judge and also similar to a lawyer is because civil individual mediation proceedings have no clear division of role. Mediators arrange everything, so they have no choice but to assume different roles of the various functions.In Chuangcun's civil individual mediation process, we seldom find the use of evidence. This is because the parties and the Mediators' awareness of evidence were not strong enough. On the other hand, it's unable to ascertain the facts of the case sometimes, and the problem of funds can not be solved. So mediation looks like fudging. After the success of the mediation, the mediators sometime draft a mediation agreement for the parties. Generally mediation agreements are written in the tone of the parties .They are more like a contract rather than a judgment. On the implementation of the mediation agreement, there is generally no problem. Mediator generally will urge the parties to implement the agreement on the spot or in a short time. In problem-solving approach, both civil mediator and the parties prefer money to pay off the settlement. This is because the approach of money payments not only convenient, highly efficient, easy to operate, but also permanent, lasting consequences. Compared with the judicial procedure, civil individual mediation is more creative and initiative on problem-solving approach. They often bring the two parties to reached a new deal to resolve old conflicts. The mediation process itself is a game process between two parties and between litigant and mediators. Litigant's money, power and relationship are powerful weapons for a favorable outcome of the mediation. Even common phenomenon and fact in daily life such as birth, death, illness and old age may become good tools hurting person. The interested party even adopt flaunt self superiority skill, shows weakness skill, lie skill , reasoning skill and the law strategy apply waiting to strive for advantageous mediation result. Variety of tactics and skill will be adopted by mediators in order to resolve the dispute. The main thing is: persuasion, delay, extra leverage, humbug and deterrence, the use of face, Replacement of gaskets for money and so on.Civil individual mediation of Chuangcun is not universal in China's rural areas. It requires various internal and external conditions. One of the fundamental conditions is China's current urban-rural dual structure, and the resulting urbanization trend of the legal and judicial procedures. Perhaps the practice of disputes settlement in Chuangcun will bring some inspiration to our legal system and judicial procedures. However, because civil individual mediation and judicial proceedings lack institutional convergence or we can say it lacks communication channels between civil individual mediation and national law and formal system, we can hardly say that the practice of Chuangcun can be included in the framework of Social governance.