Try To Talk About The Relationship Between Mediation And Trial In Civil Lawsuit

As a civil dispute resolution mechanisms， mediation can be describedas a long history in China and is known as the Oriental reputation or theOriental experience. As a dispute resolution, mediation plays anirreplaceable role in the society of ancient China. In this article, themediation mainly is the court conciliation and the relationship betweenmediation and trial mainly is the relationship between court mediation andtrial. The court Mediation in China originated in the Revolutionary Base.In the early years of China, because of the imperfect legal system and thelimitation of people’s legal concepts, mediation became the primary meansfor the court to resolve disputes. Mediation has played an important rolein the settlement of disputes in civil litigation. After the reform andopening up, with the constant improvement of China’s legal system andpeople’s legal concepts, the trial to resolve civil disputes was graduallytaken seriously. Since the beginning of the20th century, with the surgein the number of cases and the pursuit of litigation efficiency value, thevalue of mediation is taken seriously again.However, Chinese court mediation system is not perfect, especially ourcourts’ understanding of the relationship between mediation and trial isstill unreasonable. This leads to excessive emphasis on mediation and theoccurrence of mandatory mediation. The most important issues our countryfaced in the civil litigation reform are how to correctly understand therelationship between mediation and trial and how to reform it to make ita civil action in a soft and a hard two dispute resolution, together toplay a role in dispute resolution.The article intends to analyze the relationship between mediation andtrial in our country from the following six areas:First, the phenomenon of mediation revival and100%of mediation andzero judgment leads to the issues to be discussed. Mediation revival isan inevitable phenomenon occurred with the increase in litigation and the pursuit of litigation efficiency value since China has entered the21stcentury. It is a reaffirmation of the value of China’s mediation. However,the phenomenon of mandatory mediation and a series of one-sided pursuitof conciliation rate such as100%of mediation and zero judgment causedby mediation heat is a serious breach of a voluntary mediation and legalprinciples. It is contrary to the original intention of the mediation system.We should reform the relationship between mediation and trial in China’scivil litigation, making it a civil action in a soft and a hard two disputeresolution, together to play a role in dispute resolution.Second, the article analyzes the historical changes of the relationshipbetween mediation and trial in our country from the revolutionary baseperiod to the current. The relationship between mediation and trial inrevolutionary base was the combination of mediation and trial. Judgesmediated and adjudged at the same time. The typical way was "Xiwu Ma trialmode". After the founding of China, the relationship between mediation andtrial has gone through four stages of development: The first stage whenmediation was main and trial was secondary is from the founding of Chinato the promulgation of "Civil Procedure Law of the People’s Republic ofChina (for Trial Implementation)" in1982. The second stage when mediationwas emphasized and trial was supplementary is from the promulgation of"Civil Procedure Law of the People’s Republic of China (for TrialImplementation)" in1982to the promulgation of "Civil Procedure Law ofthe People’s Republic of China" in1991. The third stage when mediationand trial was equal and mediation was voluntary is from the promulgationof "Civil Procedure Law of the People’s Republic of China" in1991to the18th meeting of the Court held in2002. The fourth stage is from the18thmeeting of the Court held in2002to the current. Then the article concludesthe common relationship between mediation and trial in different periodsis that mediation is emphasized and mediation and trial are combination.Third, the article analyzes the problems of the the combination ofmediation and trial in China. The combination of the subject betweenmediation and trial makes mediation a serious breach of the principle of voluntary. The combination of the procedures for mediation and trial leadsto mutual alienation of the mediation and trial. The judicialaccountability mechanisms enable the judges to escape to verdict and thejudge performance evaluation mechanisms enable the judges keen to choosethe mediation. In addition, there are still some problems about themediation system designs.Fourth, the article introduces the views about the reform of therelationship between mediation and trial. Currently，there are three viewsabout the reform of the relationship between mediation and trial:the theoryof mediation reform and strengthen,the theory of mediation canceled andsubstituted and the theory of the separation on the mediation and trial.Thetheory of the separation on the mediation and trial includes the separationon the mediation and trial out of the litigation and the separation on themediation and trial in the litigation. In contrast, the article agrees withthe separation on the mediation and trial in the litigation.Fifth, the article analyzes the trend of the separation on the mediationand trial in China. The trend includes the set of pre-trial mediationprogram and the pre-program of mandatory mediation, and the provisions ofthe appropriate separation of the subject and information between mediationand trial. In addition, the judicial reform all over the courts alsopractices attempts.Finally，the article builds the separation system of mediation and trialbased on the analysis above. It includes the separation of the subjectbetween mediation and trial throughout the litigation, the establishmentof a full-time mediator system, the reconstruction of pre-trialconciliation proceedings, the separation of the procedures for mediationand trial before trial, and the reform and improvement on the other systems.