On The Perfection Of The Mechanism Of "Intercourse And Dispute"

With the development of society and economy, the traditional dispute resolution mechanism in the presence of multiple and complicated social disputes, more and more felt powerless, the court in the mountains of case felt overwhelmed. Integrating the social resources, perfecting the "combination of litigation and mediation" mechanism in our country, is both the need of reality and the call of the times.The paper is based on the theory of the diversified dispute settlement mechanism, with the reference of foreign mature diversified dispute settlement mechanism. Combining the intermediation mechanism of China, and summarizing the current problems of it, the paper analyzes the reasons and puts forward the concerning advices.Firstly, the paper discusses the theory of the intermediation mechanism, which is the diversified dispute settlement mechanism, and confirms the connotation of the intermediation mechanism. Then the theory and the research status including the foreign parts and the domestic parts of the diversified dispute settlement mechanism are expounded. The second part of the paper is about the investigation of china’s intermediation mechanism, which mainly focuses on the legislative status and judicial status of the intermediation mechanism. Aiming to find the experience of intermediation mechanism operation and dig out the current shortcomings of legislation and justice, the paper analyzes the practice of Jiangsu Province, Xicheng District Court of Beijing, and the Insurance industry empirically. Then in order to have certain references, the paper introduces the successful model of foreign intermediation mechanism, such as the civil mediation system in Japan, the annexed mediation court system in USA, and the mediation system in Germany and Taiwan, and compares them with China’s judicial status.Secondly, the paper summarizes three aspects of intermediation mechanism operation problems:weakening the rights of citizens, blind expansion of mediation which means the mandatory conciliation, and the legitimacy of people’s mediation agreement judicial system. There are lots of reasons for the problems including the subjective reasons and objective ones. The author summarizes the following three reasons:firstly, as the China legalization is still developing, the lack of citizens’legal consciousness and the corresponding supporting systems, the construction of socialized legalization can not be finished in a short time; secondly, the dispute settlement can be independent from the power; thirdly, the missing convergence of the pleading and the mediation.Finally, the paper puts forward three proposals. The aim of the convergence of pleading and the mediation is to settle the disputes between parties and promote social harmony. Therefore, the most important point is to protect the right of pleading. The court pre-pleading system is the important preparation for the efficient operation of the mechanism. The first step is to confirm the legitimacy of the mechanism from the legislative point. The second step is to build up the working model and process of the pre-pleading. And the third step is to improve relevant supporting measures. The key point of building a virtuous cycle to realize the efficiency of the mechanism is to combine the Litigation and non-litigation dispute resolution mechanism. In the end, the paper puts forward the advices to improve the mechanism which are mainly about the construction of judicial guarantee, and discusses the connotation of it and the practical methods in detail.