Study On The System Of The Mediation Before The Action

The Mediation before the Action system has already got the legal evidence orthe legitimacy of law value when it is affirmed by new Civil Procedure Law. Thissystem is a new attempt and innovative design of court mediation institution. Itenriches the practical basis of mediation system, and helps relieving the pressurefrom the current lawsuits’ blowout growth, improving the current judicial status, thatis,“Believe the letters and calls but not the law”. Meanwhile, this system is trying toresolve the majority of disputes before litigating, so as to save the judicial resources.However, there are some considerable controversies in the theoretical community,and it is hard to grasp the standard of mediation in judicial practice, which leads tothe legislative and judicial value of the mediation before the action systemunrealized. Based on above mentioned theoretical controversies, this paper firstclarifies the concept and nature of mediation first system, and then analyzes itsjudicial and practical background, so as to indicate the necessity of legislation ofmediation first system. In the third part, this paper goes to compare this system withother mediation systems and ADR development tendency from other countries(fromUSA, Germany, Canada and Japan, etc), and then illustrates the mediation before theaction system is a new attempt in court-annexed and extra-judicial dispute resolutionmechanism in China. Part four will analyze the problems coming from the judicialpractice, after the mediation before the action system implementing for more thanone year, and points out the unclear determine for the nature of the mediation beforethe action system, the blank system design for its system, and the absence of itsprocedure in legislation. The final part will give suggestions on institutionimprovement and system design implementation, which helps the perfect expressionof the deserved value of the mediation before the action system in judicial practice;and it also helps building the new mechanism of court-annexed and extra-judicialdispute resolution system, so as to accelerate the development course of ADR inChina.