The Research And Analysis Of "Pre-mediation" Of The New Civil Procedure Law

As a new system, the pre-litigation mediation is associated with the revival oflawsuit mediation, developed and popularized under the concept of “moderatesocial“in litigation mediation. In recent years, more and more trial court have triedthe mediation before litigation all over the country, but the pre-litigation mediationsystem in each court has not yet formed a unified model and approach, and theirnames are also different.As prescribed in article122of the new civil procedure law:”The prosecution tothe court for civil disputes, suitable for mediation, mediation before litigation, exceptthe party refused. For the first time, the formal legislation provided the mediationprocedures, which is the inevitable result of efforts by our country’s court to builddiversified dispute settlement mechanism. At present, the mediation beforeregistration has the support of the legislation, but still lacks the mature system design.At the same time, the meaning of the definition, still need to be clear by judicialinterpretation and the problems in the practice in the future also need to be furthersolved.This paper intends to explore the pre-litigation mediation is a new kind of settlement way, which combined the court mediation with social mediation. Thatmeans when disputes arrived at the court, based on the principles of voluntary,organized by the court, entrust mediators to mediate before accepting the dispute, andin accordance with the request of the parties, after mediation agreement confirmed bythe court review, legal documents will be issued. If conciliation fails, the court restartthe procedure. It can bypass action from the “quantity“, and can make up the litigationinherent drawbacks from the “quality“. Pre-litigation mediation reflects two-wayreinforcement of social and democracy in the design and operation of the modernmediation system. The court start to coordinate with the people’s mediationorganizations, administrative departments, and social organizations, form a resultantforce, in doing their job at the same time, provide convenience for parties and peopleto build a diversified dispute settlement mechanism.Pre-litigation mediation and the mediation, the entrusting mediation, the people’smediation are different, it has the characteristics and advantages of its own, which isan independent litigation dispute resolution mechanism. The entrusting mediation iswith the aid of social third power assist mediation, can be used as a method of thepre-litigation mediation. Mediation is entirely within the scope of the court mediationin lawsuit, and the people’s mediation is composed of a civil nature of the people’smediation committee, does not rely on the judicial power to solve the internalcontradiction. Pre-litigation mediation has both justice and democracy. It featuresdetermines the universality which mediation subject, the independence of the program,specific time, limited mandatory is also essential.Practice, starting from2005, the supreme people’s court continued to strengthenresearch guidance on including pre-litigation mediation, mediation and the entrustingmediation, such as the Shanghai ChangNing district people’s court “people’smediation window“and the Shanghai PuDong new area people’s court “mediationbefore litigation“program are both of the typical experiment. Among these, there isthe comparison of success is worth learning place. For example, the Changning court“Laoniangjiu“approach, introducing people’s mediation into court, move, reason, toresolve the dispute between the parties, not only fast but also inexpensive and time-saving, now,it has been widely recognized by the masses. Pudong court’s“docking litigation and Conciliation Center“is relatively professional, hiring a groupof a professional legal knowledge and practical experience of the retired cadres tomediation, let the parties reconciled and be sincerely convinced. Since thepre-litigation mediation mechanism to carried out, besides fast solving civil disputes,saved people a lot of litigation costs and the judicial resources, obtaining praise on thelaw. The author through analysis and comparison of these samples, analyzing thecommon and the difference and summing up useful experience to provide referencefor the judicial practice in the future.With the establishment of mediation system of pre-litigation, another cause ofour concern is with another noun “docking litigation and conciliation“. As a result ofthe blank in legislation, the pre-litigation mediation does not have unified regulationpractice, how to join between the litigation and conciliation is also unclear, This willinevitably lead to the emergence of various problems, and each court’s problemsencountered in operation are also different. After clarifying the meaning of Dockinglitigation and conciliation, we take Pudong court as the typical representative toanalyze current situation of docking litigation and conciliation, extract some commonproblems of stage, such as the combination of mediation and judgment, one-sidedpursuit of high settlement rate, the range of accepting is too wide etc.. These problemscan not be ignored and are needed in the judicial practice and legislative process in thefuture improvement. But in the practice of a party is not enough, we must start fromthe root of “legislation “.In the system, not only put the pre-litigation mediation ‘simplementation into detail, define the scope, charge standards, procedures and timelimit, but also the legislature should speed up the formulation of “the court mediationlaw “so that the mediation system to unify, the docking litigation and conciliation ‘scohesion and implementation should be improved in the corresponding legislation.Inpractice, how to control the power of the judge, how to achieve complete separationof mediation and trial, how to make the principle of voluntary consistently, how toconstantly improve the quality of personnel for better mediation, these challenge arewhat we will face in the future. This article’s analysis is just based on the new “pre-litigation mediation“systemof traditional law blank filling and the guiding significance of practice, and discusscombining the problems in the practice process, deepening the mediation systemunderstanding at the same time resonating with readers, in order to contribute for thestudy of pre-litigation mediation mechanism.