Research On The Pre-litigation Mediation Procedure In Family Cases

Family cases have strong personal attributes and ethical factors.Although they are mostly property disputes,they are essentially emotional contradictions and conflicts.The uniqueness of family cases makes mediation play an important role in resolving family cases involving family affection and ethical relationships.Compared with litigation,mediation is more “flexible” and “softer”.It is easier to resolve the disputes while promoting emotional repair and maintaining family harmony.It is more in line with the value orientation of solving family cases.This article focuses on the construction of the mediation procedure before litigation in family cases,this article expounds the necessary of constructing the mediation procedure before litigation based on the pilot practice and theoretical evidence,and on this basis,puts forward the tentative idea of constructing the mediation procedure before litigation.The pre-litigation mediation procedure refers to the relative separation between mediation and litigation procedures.Before the registration is filed,the court-led and mediation method is used to resolve family disputes,without mediation procedures,it is not allowed to enter the proceedings.The pre-litigation mediation process presents the characteristics of “prepositive” and “mandatory”.It puts the mediation before the litigation and imposes compulsory on the start of the procedure,which is conducive to promoting the diversification and diversion of the trial judges.It is also conducive to reducing confrontation between the parties and promoting one-off resolution of disputes.At the same time,it is also in line with the trend of “separation of complaints” and “diversification of dispute resolution”.The "Opinions on the Trial of Family Trial and Working Mechanism Reform" promulgated by the Supreme People's Court provided advocative guidance for the professional reform of family trials.The pilot courts actively promoted pre-litigation mediation procedures in the pilot work.The pilot courts launched a number of innovative initiatives such as setting a cooling-off period for divorce,establishing a rehabilitative trial and helping the parties complete psychological repairs.However,in the trial process of the mediation system before the family case,it also showed many deficiencies.First of all,the pre-litigation mediation process has not been independent,the proceedings and the mediation process are not completely separated.This makes the judges who handle family cases often have duality,which leads to the mediation being unable to get rid of the referee and independence.Secondly,the scope of the family case in the various pilot courts also show great differences,which makes the same kind of disputes in different regions will be treated differently,which is not conducive to judicial authority and predictability.Thirdly,mediators are the key figures in grasping the mediation trend before the prosecution.For the composition and selection criteria of mediators,there is no uniformity in practice,and there is still a lack of specialization.When constructing the mediation procedure before the family case,we should pay attention to the many deficiencies reflected in the judicial practice,and build and improve it based on this.When constructing a mediation procedure in a family case,the independence of the mediation procedure before the prosecution,the professionalism of the mediation organization and the subject,the operability of the operational process and the rationality of the connection with the litigation should be clarified.First,the pre-litigation mediation procedure should be defined as an independent procedure.The judge can play an active role in the pre-litigation mediation process and clarify the basic facts so as to restore the feelings,protect the interests of minors and maintain family harmony.Second,in general,the judge cannot intervene in the dispute before the lawsuit.The court can initiate the mediation process through the “pre-registration” method to achieve the purpose of separation between mediation and litigation.In the process of mediation,the court must always maintain a neutral attitude and mediate on the basis of insisting on the facts.Third,a special pre-litigation mediation office should be set up within the court.The pre-litigation mediation should be conducted mainly by the court.Because of the judicial authority and the people's trust in the court,the mediation procedure before the prosecution can be guaranteed.In the context of the legal officer quota system,the composition of the court's personnel can be divided and reconstructed to a certain extent,and the former mediation specialists can be differentiated.At the same time,the retired judges,family lawyers,psychological counselors and other experienced personnel can be selected in the society.It can constitute the configuration of the mediator.And then,mediation by the court should not be in conflict with the current law,and issues such as the connection between filing and litigation should also be clearly defined.If the mediation association succeeds and signs a mediation agreement,the mediation before the lawsuit is fully grasped by the court.When the parties apply to the court for confirmation,they can only conduct a formal review of the mediation agreement.If the mediation fails,the case is transferred to the proceedings.The facts recognized in the mediation process may be transferred to the proceedings with the case,unless the parties disagree or involve the interests of the minor.