Research On The "Mediation Fever" Of The Resettlement Compensatory Contract

The present situation and legislation of resettlement in our country are imperfect, the means of judicial relief are scarce which leads to the difficulty in solving conflicts between private power and state power for a period of time. After the resettlement cases get into the process of civil action, presently existing "mediation fever" shows its inevitability since aiming at the existence of a case mediating can fulfill the social effects better. Such kind of "fever" reveals a judicial belief aiming at withdrawing a lawsuit. This judicial belief, in the judicial practice, usually has the orientation with the cost of sacrificing rules of law. So that it isn't beneficial to the establishing of legal order and the real resolving of resettlement problems. What's more, this belief will not only bring the judge pressure, making the court decision fall into difficulty and get the long-standing mistaken idea like "we must mediate". But also directly constitutes a threat to the authority of court decision. Therefore, when we apply mediation of lawsuit to the resettlement contract to settle the dispute, we can not ignore the unfavorable effects caused by closing a case through mediating. Mediation and judgment are the two basic ways to conclude a case in the civil lawsuit, as well as the important ways to settle a dispute efficiently and realize social harmony. Meanwhile, they have different traits on resolving contradictions but it is hard to distinguish good from bad .In the specific adjudication, we should adhere to the civil lawsuit guidance proposed by the superior court, which is "mediate if the situation permits; judge if there is no room for mediation; combine mediation and judgment". Besides, we should also hold on to the principle "laying equal stress to mediation and judgment", so that we can organically combine mediation and judgment, but not sway between them. With the consideration of the "mediation fever" existing in our resettlement contracts, writer of this essay tries to analyze the reasons why the court mediation could step into the long-standing mistaken ideas and the adverse effects caused by them. Then seeks for a practical way to perfect the ways of handling with a legal case, which combines mediation with judgment.