The Research Of "Pre-mediation" Of The Civil Procedure Law From The Perspective Of Law And Economics

Based on the real cases in trial practice,reveals some cases for both the court and the parties in the lawsuit,needs to be in the trial,judgment and execution of each link to pay a lot of litigation costs,in some cases can be settled through mediation before litigation,and avoid waste of national judicial resources,makes the intension of judicial resources become more nervous.pre-litigation mediation provides a new way of dispute resolution,as one of diversified products to resolve disputes,it can reconfigure the judicial resources,also make the parties and the court according to the costs and benefits in the litigation procedure to make rational optimization economic choice.First of all,due to the absence of the legislation of pre-litigation mediation,the use of the term of diversified disputesettlement mechanism has emerged in an endless variety of forms,which is different from the existing pre-litigation mediation,case-filing mediation,commissioned mediation and people's mediation.It has its own characteristics and advantages,and is an independent pre-litigation dispute settlement mechanism.In practice,there are several operating modes of mediation,mainly including court's attached mediation room,judge's mediation,people's mediation and commissioned mediation.Litigation activities will generate costs.From the perspective of legal and economic costs and benefits,litigation costs include direct costs,ethical costs,error costs,opportunity costs,etc.In the case of the same expected benefits,the pre-litigation mediation save these costs.Some simple cases can shorten the trial time,reduce the direct cost and improve the judicial efficiency if the mediation is applied first.For difficult cases,even if the court knows that the direct cost of mediation has increased,the total cost of mediation is generally lower than the total cost of the judgment if it is offset by a significant reduction in the cost of error and ethical costs.So generally speaking,the advance mediation system has certain economy,and it is necessary to perfect the advance mediation system.However,the absence of legislation leads to the lack of operability in the actual practice of pre-litigation mediation.In addition,China's defective mediation system and the introduction of the case registration system also seriously affect the development ofthis system.There are many obstacles in the application of pre-litigation mediation: first,the character of antecedent mediation is not sure;second,the application rate of pre-litigation mediation is low.The reason for the low application rate is mainly the subject and scope of antecedent mediation;third,the supporting mechanism of pre-litigation mediation is not perfect.In order to improve the system of pre-litigation mediation,it is necessary to proceed from the dilemma and should be improved from the following aspects.The second is to improve the application rate of pre-litigation mediation,mainly to determine the subject of pre-litigation mediation,the subject of commissioned mediation and the subject of court mediation;Clarify the scope of pre-litigation mediation,including the types of cases suitable for pre-litigation mediation and the types of cases not suitable for pre-litigation mediation;Third,improve the supporting mechanism of pre-litigation mediation.First of all,it is necessary to confirm the initiation process of mediation first,and the parties should apply for the initiation,and then establish the connection mechanism between successful mediation and unsuccessful mediation,clarify the time limit and cost of mediation again,and finally establish the incentive and supervision mechanism of mediation.