From System To Value:Comparative Structure And Function Analysis Of Court Annexed Mediation Between China And American

Since the 18 th National Congress of China,China has paid more attention to the establishment of a alternative dispute resolution mechanism,and vigorously carried out court annexed mediation based on America which has the most developed ADR movement.However,America's court annexed mediation has been well-developed over the past decades,with the support of a micro-level litigation system,a medium-level litigation model,and a macro-level value base.Under the same three levels,the current situation in China does not have the above three levels of support.The construction of court annexed mediation in China will inevitably encounter difficulties.The article starts from the two functionalities of mediation,from the micro-litigation system,the meso-suit litigation model to the macro-social values as the three-level analytical framework,from "institution-mode-value" as the full range analysis.The article believes that the development of America court annexed mediation is more important than the rationality of the operation of the mechanism.The separation of the trial and the pretrial provide independent space and clear evidence for the court annexed mediation;Party-domination litigation system has the same essence as mediation which is voluntary;America liberal values also guarantees the voluntary of mediation.First of all,from the court's point of view,the primary function of the court annexed mediation is to ease the court's litigation pressure.Secondly,from the perspective of the mediation system itself,the most essential requirement is to satisfy the party's voluntary nature.But China does not have the above three levels of support,it will take China a lot of work to break through the difficulties in court annexed mediation even the entire ADR.