The Mandatory Factors In Mediation

On the basis of reaching consensus, mediation leads the role of resolving disputes automatically. As a desirable type of dispute resolution, mediation shall give full play to the party’s independence ability while forming a consensus. Sometimes, however, it is not enough for only to rely on independent ability. It might lead to some problems for not interfering the absolute negotiation and deals among all parties on the issues of the rights and interests, such as oppressing the weak, hard to repair the damaged social relations or metamorphism gets desired and so on. Therefore, in order to realize some value targets, the operator of mediation system may sacrifice certain consensuses, inject certain mandatory factors in the mediation and make necessary intervention to the process and results to ensure dispute resolution accord with the legal, ethical and social public interests, thus to ensure the society to be stable.In mediation, mandatory factor refers to the factors violating to the parties’ consensuses. It may be based on national mandatory requirements, it could be a mediator’s considerations based on public interests, political interests, ethical requirements, the third party’s interests and so on. Through mandatory factors, to some extent, to make the mediation integrate with the social better, in line with social norms and social aspirations. Mediation is a form of social behavior, a social way of dispute resolution. The mandatory factors which are based on social interests and institutional arrangements must exist. Mandatory factors in mediation can be expressed as procedural arrangements, carried out to better resolve disputes in the mediation process, and also to make the results of the mediation enforceable, not to obey the will of the parties. In mediation, the enforcement of result is essentially procedural arrangements, its uniqueness lies in the parties shall execute the final result. We should be rational and objective look at the existence of the mandatory factors in mediation. Mandatory factors are not synonymous with bad interference, which itself is a neutral concept unrelated to appraise or criticism.Mediation has always been in tense relations between voluntary and mandatory since its birth. On the one hand, the ultimate pursuit of mediation is mean to make a consensus to settle the conflicts by the independence of parties. On the other hand, it is necessary to make the intervene of mandatory factors properly in resolving the dispute. Mandatory and voluntary apparently contradict with each other, but appropriate enforcement is to better protect the parties’ consensus. In mediation, reaching consensus between the parties by voluntary is difficult at any age and in any country. The existence of mandatory factors is mean to resolve disputes better, to better protect the parties’ right, especially to the weak; to better recover the damaged social relations. Thus, it is mean to properly in resolving the dispute. In China, administrative mediation, litigation mediation, people’s mediation and other civil mediation are all required to introduced appropriate mandatory factors, which is said to be a major trend in modern mediation system.Mandatory factors in mediation is to protect party interests, public interest and the public order, besides, mandatory factors can make dispute’s solution in line with the needs of modern society. Mandatory factors are not based on mediator’s will, and not outrageous requirements. However, out-and-out mandatory may bring terrible consequences, including the deterioration of social relations and dispute resolution mechanisms. Therefore, it should handle the relationship between the parties’ voluntary and the enforcement properly. Draw a line between reasonable forcement and outrageous forcement. Both of these two problems must be considered in setting mandatory program and institutional arrangements. In order to protect the purity of the parties’ consensus and make mandatory does not exceed legal and moral bottom line, the key is to seek the right balance between the two, aims at enforcing strict restrictions and reasonable standard to protect the legitimate interests of the parties as far as possible, to recover the damaged social relationships better. If you do not regulate the use of the mandatory factors, just letting it in darkness and going astray, then mandatory factors will not play good results but impede disputes effectively solved.