Study On Legal System Of Mediation Confidentiality

Since 1950's, ADR(alternative dispute resolution), especially mediation, Develops rapidly in the western countries. Contrary to the litigation which involves complicate procedures, big money and time-consuming, the mediation play a very important role which litigation can not transcend due to its rapidity, practicality and catering for psychological need and the ability to sustain harmonious relation among people. In the West, especially in countries of common law, the traditional spirit of rule of law was embodied as "litigation". The rapid developmemt of mediation is changing the dominant position of litigation in those society. Otherwise, mediation, used to be invention and characteristics of China, begin to be overlooked, refrained and discarded in our society. How to combine innovations of other countries with short history of mediation with real circumstances in China in order to assisting journey of rule of law which revives mediation is a difficult task.This paper, based on present system of mediation confidentiality in the Canada and USA, attempt primarily to outline mediation system of our country. The discussion involve three parts. The first one focus on basic theory and issues of reality, including information which need to be privileged, enforcement of confidentiality, exception of privilege etc.. The second part probe primarily into dilemmas confronted between confidential theory and reality, involving mainly in issues such as facilitating mediation, corrosion to publicity by the confidential privilege, and conflicts between privilege and "good faith" paticipation requirement and contracts. The third part of the paper focus on the positive effects which present mediation system of the West should revive on the China's traditional system of mediation, basing on this, reconstruct system of mediation confidentiality in China.