Judicial Adr And The Court Mediation System Reconstruction

The ADR is the abbreviation of the Alternative Dispute Resolution; it is the generic name of various Alternative Dispute Resolutions outside of international community widespread and existent litigation system since 20 centuries. From the 70's in 20 centuries in the court of the Anglo-American law states, especially a little bit American states annexed the third people Dispute Settlement System, being a wreath of the litigation procedure the ADR to lead into and became judicial ADR system, and also called the Court annexed ADR.The ADR and judicial ADR develop quickly in the west, and is becoming the main way of the Alternative Dispute Resolution. The judicial ADR has its existence of worth foundation, it adapted to the demands of right claiming diversification, benefits and conflict diversification, the values diversification and Dispute Resolution methods diversification. The judicial ADR has important function that lowers dispute and solves cost, convenient dispute to solve, supports the party's greatest advantage, overcomes natural disadvantages of the litigation assize, is benefit to Constructing harmonious society, promoting the sustainable development of Chinese society.The intermediation system of our country court has experienced a longer development process, is becoming the main way of our country civil case Dispute Resolution, has a deep cultural foundation and system arrangement, and has an important function to promote the development and stability of Chinese society. However, with the development of times and the promotion of law system, its Shortcoming is in evidence increase. The judgment procedure in our country court and the intermediation procedure are united, become the source of conflict and strain. The court has the judicature and the intermediation power at the same time, make him in the intermediation process to create latent constraint to the party, erode the party's Unconstraint Principle. The intermediation procedure still has many deflections, need to be further perfect. On current society, transforming period contradiction is highlight; urgently need a new dispute resolution mechanism to dissolve various contradictions. So, we should with opening view, draw lessons from other national ADRs and the principle of the judicial ADR, Reconstruct of intermediation mode our country court, build up diversified Dispute Resolution mechanism, dissolve the society contradiction, promote society's stability and development.In the reconstruction of our country court's intermediation system, establish the intermediation system before litigation, construct court annexed intermediation system, construct the independence value that the litigation reaches agreement, and standardize judge's intermediation in court questioning.Firstly, court, people's intermediation, Judicature institute, each administrative department and social group cooperate each other, become a kind of resultant force in the process of solving dispute. Through providing an economy convenience way to dispute resolution before litigation, establish an intermediation mechanism before litigation, make dispute be solve before the court register. Intermediation system before litigation is a kind of long-term mechanism, we should strengthen information communication, system construction, personnel training, the procedure candor within each other, earnestly maintenance the party concerned benefits, promote the dispute solve.Secondly, constructing pretrial annexed intermediation system (namely judicial ADR), pretrial intermediation organization unify to carry on intermediation to the case that have already registered and entered the litigation procedure. Pretrial Intermediation personnel should be socialized appropriately, that could be constituted with retired judges, lawyers and expert who have specialized knowledge. The organization's management, actual operation should keep relative independence with court, forbidding intermediation personnel and judges keeping apart, guaranteeing intermediation organization have independent budget source, keeping their neutrality and justness. The court has the power of supervision on choosing Intermediation personnel, on procedure legality, has the power of judicial review to intermediation agreement, consequently ensure the intermediation procedure is fair, efficient and legality. Thirdly, construct the independence value of settlement of action; make it in the process of solving dispute play its function. Our country civil procedure law only have one regulation rule to settlement of action, publicizing the right of the party concerned only, having no concrete content and procedure assurance. Through providing the start of settlement procedure, the Effect of settlement agreement, the function of judge in settlement, and the implement of settlement agreement, give the settlement of action an independence existent value. Then, influence and change the intermediation system of the current courts and make the center of intermediation of the court from the judge's predominance to the party.Fourthly, by standardize judge's intermediation in court questioning, ensure the intermediation procedure is fair, efficient and legality, and the party's freedom right was maintained. Unless the party agree, forbidding judgment judge to hold the post of an intermediation judge at the same time. Avoided the case follow into long time's intermediation, the period and times of intermediation are explicitly stipulated, and the corresponding systems and procedures should be stipulated. So, since can promote the party reach the intermediation agreement voluntarily, can ensure the intermediation agreement is authoritative.Through the construction of those systems, make the current court intermediation system have relative independence and mutual cooperation four parts, urge intermediation system in current court vary in structure and innovate in system, solve every kind of social dispute availably, and promote the construction of the harmonious society.