Mediation Reform And Improvement

Intermediation of lawsuit also called court intermediation means to solve the disputes between the two sides in a lawsuit under the host of judges on the basis of clients' own will. It is one of the most important Chinese characteristic systems of civil case. Being in accordance with Chinese traditional law, intermediation has been the focus in Chinese new civil case system. The long history of intermediation tradition has become important recourses of Chinese law culture. In ancient china, intermediation widely adopted on the principle of harmony played an important role in seeking no lawsuit and realizing rulers' intervention in private rights. That accounts for the long existence of intermediation and the confusion of justice and administration. With the founding of peoples republic of china, more and more attention has been given to the differences between public and civil rights. Public rights are not limitless that means there should not be so much intervention of public rights in civil right area. With the increase of law awareness, the institution of intermediation has experienced the following changes : from the dominating role at the beginning of the nation founding to the important role in 1982,and then to the establishment of intermediation system in 1991. In the system of intermediation, the focus is on the side of clients. But in legal practice, the willingness of intermediation can not be guaranteed that accounts for the decreasing role of intermediation. Todaymore and more scholars have paid attention to the issue of intermediation. This essay, through the way of tracing the history of intermediation, comparing relative systems believes that the system of intermediation still has its place in civil case not only because of its value but also its practical meaning. Intermediation is an effective and efficient way to solve disputes. The negative results of the system are not because of its structural contradiction but because of its non -institutional procedures leading to arbitrary that seriously affects its effectiveness. So in stead of abolishing the system, an institutional procedure of such system should be established.From the view of procedural law, the goal of intermediation reform should be as following: under the premise of keeping the intermediation role, to keep a good balance between procedural rights and judicial authority through a well designed procedure. Civil mediation should be fixed as a procedural institution. With such institution, judges can play a positive role in mediating without interfering in the free will of the clients. In order to ensure the positive role of intermediation, the scale of intermediation should be regulated and the dominating role of clients should be guaranteed. The judges' role should be objective, just and passive. The way of intermediation also needs to be regulated, for example, to increase the binding force of the intermediation agreement, to regulate non public intermediation and the negative results for the clientrefusing to accept intermediation. In practice, the essay suggests the major mediation out court, a good balance between judgment and mediation and a paying mediation procedural system.