The Improvement Of The Mediation Mechanism Of Labor Dispute Arbitration In China

Many norms about the mediation process of labor dispute arbitration in China's labor law often exist in an uncertain way.In real life,arbitrator's performance,labor force comparison and other factors often affect the results of labor dispute arbitration mediation,but researchers can not accurately position the influencing factors in these subjective behaviors.Therefore,returning to legal realism,this article will proceed from the analysis of system to the analysis of process,in order to build the "decisive-desirable " and "conditional-normative" as two axis system on the basis of the analysis model,based on the empirical data of the Xiamen labor dispute arbitration committee,from the analysis of the functions of the workers,the employer,the main mediator and their interaction to reveal the current situation of China's labor dispute arbitration mediation mechanism in a new perspective.Through the analysis,we found that,on the one hand,owing to the existence of "compulsory agreement" in arbitration,the agreement incline to move to the "decisive" pole;on the other hand,the weak position of workers has also led to its failure in the game so as to make too many compromises,and the contents of the agreement move to the " conditional "pole.In general,the neglect of the compulsory regulations of labor law is the fundamental reason for the reduction of the economic demand of the workers under this system At the same time,according to the rules of arbitration mediation scope and validity of the arbitration agreement and arbitration mediation system on "labor dispute mediation and Arbitration Law",we found that our construction of labor dispute arbitration mechanism is still in formal aspect,in order to improve this system,we must consider our national condition.It is found that the specific problems and main reasons for the mediation mechanism of labor dispute arbitration provide the direction for the next step.By comparing Tanase Takashio's four ideal models which determine the functional orientation of mediation,this article orientate the function of labor dispute arbitration between "negotiational mediation" and "judging mediation".Therefore,in order to solve the existing problems and improve the labor dispute arbitration mediation mechanism,we should set the two aspects of protecting the parties' consensual freedom and guiding the parties' intentions to the fundamental goals.