Research On China's Court-attached Pre-litigation Mediation System

Since the reform and opening up in China,social life and judicial environment has continued to develop and change,and the number of cases accepted by the people's courts has continued to grow.With the implementation of the registration system and the advancement of the legal officer system in recent years,the contradiction of “more cases with less judges in the court” has been further aggravated in China: the registration system has not only lowered the threshold for filing,but also brought more cases into the proceedings.The diversified dispute resolution mechanism has caused a certain degree of impact:some of the cases that could have been resolved by the diversified solution mechanism turned to the litigation process.At the same time,"there are many people in the case" has spawned other problems: the quality of the trial is rough,the party's complaints are increasing,and the disputes are not resolved in time.In response,local people's courts have begun to try a series of reform measures to alleviate this situation,such as the court's pre-litigation mediation mechanism.The court-attached pre-litigation mediation has achieved initial success in the above-mentioned problems in practice.However,due to the lack of legislation and supporting measures,there are problems in the principles,the scope of application,the procedures and the mediation period,which make the system not play its due role.This paper analyzes the concept and nature of the pre-litigation mediation of Court Subsidiary,analyzes its institutional value,and discusses the main problems in the court's pre-litigation mediation.Based on this,the comparative study of two representative countries and regions is based on the above analysis.Finally,this article attempts to provide some suggestions for the improvement of court attachment pre-litigation mediation.The above analyzes are listed into four parts as follows:The first part is an overview.Firstly,it compares and analyzes the concept of court-attached pre-litigation mediation,which draws a conclusion that the mediation subject is not the court,and its nature is non-litigation.It also summarizes its characteristics of judiciary,professional,preposition,efficiency,economics,and stability.Then it analyzes the three functions of this system: promoting the separation of trials and mediations,alleviating the pressure on the courts and reducing lawsuits burden of both parties.The second part first introduces the current situation of this system in our country-the gap between the level of reality and ideal.Then,from two aspects,the main problems in court-attached pre-litigation mediation are raised.First,the legal basis: the application of the basic principles is vague;the scope of the case is not clear;the procedures of jurisdiction,avoidance,initiation and mediation period are lack of standardization and unification;Second,the supporting measures guarantee: the selection,management and assessment of the mediator are not standardized;the case management and filing process is too cumbersome.The third part compares and references the similar systems in the world,and selects the US court-attached ADR system and the pre-litigation mediation system in Taiwan as two samples.It is the object of reference for China.The fourth part is based on the above analysis and discussion,and combined with the current situation of China's judicial practice and the useful experience of the extraterritorial,put forward some suggestions for improving the system.The first is the legal basis: the application of the basic principles should be clarified,and the basic principles of combining mediation preposition and mediation freedom should be established;comprehensively draw lessons from the practice of some courts in Taiwan and the Mainland,and then rationally formulate the scope of the case for pre-litigation mediation;standardize and unified jurisdiction,avoidance,initiation methods,and mediation period;in order to avoid procedures redundant and judicial resources waste,the effectiveness of the agreement should be strengthened after the mediation agreement is reached,so that the functions of mediation are implemented.The second is the support measures: in order to standardize the selection,management and evaluation mechanism of mediators,resources and funds should be integrated;the mode of selection of mediators should be clarified,their credibility should be improved,and the management mode should be scientifically formulated;the working mode of the mediation committee should be determined and improved as well.Simplify the case management and archiving process,and liberate the court from the transactional work.