The Research Of Pretrail Mediation

Once called the oriental experience, the traditional theory and experience of Chinese court mediation is confronting challenge with the development of the modern judicial. On the other hand, with the diversified social development and the establishment of objective of constructing the harmonious society, mediation is attracting more concern because of its unique function of dispute settlement. Since the dilemma between the mediation and trial would exist forever, the traditional court mediation system shall be reformed to adapt to modern market economy and the demand of Chinese cultural tradition and the current social development and requirement shall be taken into consideration concurrently. Thereby the pretrial mediation mechanism has become a major issue in judicial reform.Based on the analysis of the relationship between the function of mediation and judgment of the court, the paper discussed the necessity and feasibility of constructing the pretrial mediation mechanism according to the idea of the separation of mediation and trial. Meanwhile, with references to the general theories and rules acquired from overseas successful cases, according to the specific social conditions of PRC, this Paper proposed the following detailed scheme for constructing the PRC pretrial mediation mechanism on the basis of demonstration and analysis of previous experience by combining with the comparison and analysis on trial reform patterns currently used by courts in various places in China: to construct the Chinese judicial ADR system by making suitable adjustment to current Chinese court mediation system, and, based on current situation of China, it shall be appropriate to adopt a optional pre-trial mediation. This means differences between mediation and trial,and mediator and trial judge, must be strictly distinguished, so as to make the mediation become an independent stage prior to the proceedings.