On The "v Intermediation" Difficulties And Outlet Mediation

The dispute is a objective existence in the humankind’s history and it always accompanies the development of human society. The disputes cannot be avoided and a moderate amount of disputes have harmony impetus to the progress of the society. During the period of social transformation, facing the predicament of "litigation explosion" and the status of mediation declining, the reform of "the butt joint with litigation and mediation" arises at the historic moment. It is unique among civil litigation reform, and it has caused wide public concern. In the new Civil Procedure Law(2012), mediation prior to making an award and the judicial confirmation of the mediation agreement undoubtedly demonstrate "the butt joint with litigation and mediation". The implementation of "the butt joint with litigation and mediation" mechanism is beneficial to distribute different kinds of judicial cases and enhance the efficiency of dispute resolution, thereby easing the pressure of difficult execution to some extent.The mechanism of "the butt joint with litigation and mediation" has a positive value function. It provided a possible for realizing the benign interaction between the judicial relief and social relief. But there are layers of obstacles and shortcomings in the process of the courts around carrying it out, such as the question of whether advocating the mediation meets the rule of law, the lack of running guarantee and the preference for mediation due to the unity of trial and mediation. A series of problems severely restrict mediation functions to some extent and impede the smooth running of "the butt joint with litigation and mediation" mechanism. These obstacles don’t benefit to effectively resolve social contradictions and disputes, and go against the building of a harmonious society.Therefore, in order to cater to build the system of disputes settlement diversification, we can perfect the mechanism of "the butt joint with litigation and mediation" in our country and explore the way-out of the current mediation system through drawing from Japan’s civil mediation institution, the township mediation institution in Taiwan and the court mediation system in the United States. First of all, we should clear the role of people’s mediation and litigation. People’s mediation is the "first line of defense" of social disputes settlements and lawsuit is the "last line of defense" to resolve disputes. We should make clear the responsibilities for work. Secondly, we should implement staff role separation to gradually realize the separation of trial and mediation and cancel the right of rescission to perfect lawsuit mediation. We also should detail the link procedure of people’s mediation and litigation so as to optimize outside mediation. In addition, we can absorb the experience of American mediation system to set up and perfect the punishment mechanism for false mediation to avoid metamorphic mediation in practice. Of course, an important point of mediation is the mediators. And the professional quality of mediators is a priority among priorities. Consequently, we have the need to further strengthen the training of mediator quality and behavior standards.Carrying out "the butt joint with litigation and mediation" is good for giving full play to the superiority of mediation system and implementing "the combination of litigation and mediation, so as to promote a harmonious society. As a system with Chinese characteristics and higher practical value, we need to reform and perfect civil mediation system from various angles for facilitating better the function of "the butt joint with litigation and mediation" and couple hardness with softness so as to realize the seamless cohesion between judicial relief and social relief.