An Empirical Study On Chinese Judicial Mediation Process Of Labor Disputes-From Institutional Analysis To Procedural Analysis

Since the enforcement of Labor Contract Law in2008, a large number of labor disputes are brought to courts of all levels and regions. Both of the burden of time limits and the effect of judicial judgment dispose courts to the mediation. In labor disputes, employers not only breach the contract, but also violate the mandatory labor standards. In this case, the judicial mediation of labor disputes may not only influence our whole resolution system of labor disputes, but also may bring potential risks of softening procedural law and substantive law. Therefore, judicial mediation of labor disputes should guarantee voluntaries of parties, at the same time, enforce mandatory labor standards. Furthermore, judicial mediation as one of the alternative disputes resolutions should pay attention to procedural justice. However, mediation process is flexible and pursues substantive settlement, which makes its procedural justice different from legal process. Procedural justice in mediation is neither independent nor given priority over substantive justice. Therefore, judicial mediation should both be based on guaranteeing voluntaries and make use of approaches and factors flexibly to solve disputes.In process of judicial mediation of labor disputes, neither substantive rules nor procedural rules are explicit, meanwhile, employers'delay, employees'weekness, judge's constraint and other actions may affect the process of judicial mediation. However, researchers cannot abstract a specific system from these complicated individual actions and preferences. Therefore the abstract institutional perspective should be shifted to process analysis, back to realistic jurisprudence during this empirical study. Through setting up a graph which consist of two axes, one is "labor laws-consensus of parties", another is "procedural justice-substantive justice", the research can be focused on judges, employees, employers and kinds of factors restrict their actions, such as how mandatory labor laws affect mediation, behavior bias of parties during mediation process, the role of judges and their actions, the complex relation of judicial mediation and law-suit and so on. By analyzing these empirical evidences, we find in this graph Chinese judicial mediation process is imbalance. In one side, the mandatory labor standards is neglected, and in other side, employees 'voluntaries are missing because of excessive force. In one side, the combine of judge and mediator cause sustentative injustice, in other side, judges rely heavily on mediation to avoid the mission of applying laws.Problems found by above study point the way of perfecting judicial mediation procedure. Through processing and analyzing those empirical data by the graph,"Judging-Based Mediation" and "Humanization-Based Mediation" have been established, and the procedural rules which combine "disputes mediation according to labor laws" to "disputes mediation according to consensus of parties" are set up. Besides, resolution of disputes and repair of the labor relations have a common direction which we are heading for.