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Reflection On The Upsurge Of Mediation

Posted on:2013-11-13Degree:MasterType:Thesis
Country:ChinaCandidate:W FengFull Text:PDF
GTID:2246330374969617Subject:Law
Abstract/Summary:PDF Full Text Request
The lawsuit mediation known as the "east experience" was once the main way of working of the people’s court at the beginning of the PRC. After a long period of silence, the lawsuit mediation is becoming increasingly hot in the whole country from the beginning of this century. Under guidance of mediation first, the mediation cases are quite a lot in the recent two years. The phenomenon of the above is mainly originated from:the requirements of the party and the government while constructing the harmonious society; the court’s way to deal with the difficulties in the procedure of execution; the judge’s painful choice to avoid the contradictions of our society. The author generalized the characteristics of this upsurge briefly, trying to analyze and looking for the deep reasons of this kind of social phenomenon.Along with ceaselessly warming up of the lawsuit mediation, emphasizing the mediation too much has obtained the certain social effects, but it is undeniable that mediation after all has many limitations and the insufficiency, for example, the loss of the inherent law of mediation; conflict to the judge’s neutral character; against the justified requirement of the judicial procedure; The uncertain fairness; aggravating the judge’s psychological contradictions, etc. In this paper, the author summarized the main existing problems and also analyzed the various reasons of the problems. Among the factors that restricted the healthy development of the lawsuits and the mediation, fuzzy knowledge is a root cause; afterwards of the legislation is the technical cause; letters and visits to do with the lawsuits are practical reason; to seek quick success and instant benefits is the subjective reason.The realization of the problem is the foundation of solution. To be aimed at the main problems caused by the current great mass fervor of mediation, it is very significant to perfect our country’s lawsuit mediation system. In order to solve the existing problems of the mediation system, such as the position, the procedures, the team, the way, and so on, we should emphasize the significance of the mediation and pay much attention. But, we can not sacrifice or reject adjudication and put the mediation above adjudication. We should deal with the relationship between the mediation and judgment action correctly:giving first place to adjudication and keeping the mediation complementary, to make sure the two return to what they was; perfecting the mediation system, to ensure the priority of the litigant’s autonomy to state intervention, insisting on the separation between the adjudication and mediation, introducing independent trial mediator system, and establishing a limited mediation system; pursuing further expansion of the functions of mediation, and establishing a "coordinated linkage mechanism" between the lawsuit mediation, the people’s mediation, and the administrative mediation; Improving the quality of the mediation teams, setting up the system of mediators, and building a professional team of mediators. It is hoped that those countermeasures and suggestions would be useful for the healthy and sustainable development of the lawsuit mediation.
Keywords/Search Tags:lawsuit mediation, problem, suggestion
PDF Full Text Request
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