The Research Of The Mode Of Arb-Med

Arbitration and mediation are two unique methods of civil and commercial dispute resolution and have their own unique attributes.With the development of civil and commercial transactions,the parties are no longer satisfied with a single dispute resolution mechanism,pursuing a diversified dispute resolution system,and the combination of arbitration and mediation has emerged.The combination of arbitration and mediation includes six basic modes.The mediation mode in arbitration is the most representative.The meaning is that the parties initiate the arbitration process in order to resolve the dispute.In the process of the arbitration process,the arbitrator mediates the case.A form of arbitration and mediation in which the arbitration process is resumed after the mediation is not completed or after the mediation is successful.China has a profound political,economic and cultural background that creates a mode of mediation in arbitration.Arbitration and mediation have many things in common,and they pursue the same value orientation.This is the basis for establishing a mediation model in arbitration.The mediation model in arbitration can objectively make up for the shortcomings of mediation and arbitration procedures when they are run separately.It can better meet the actual needs of the parties,and these two points together constitute the necessary foundation for establishing a mediation model in arbitration.Due to the risks inherent in the model itself,the academic community has questioned the model: it may result in a “ mandatoryagreement ”,the neutral person may receive improper interference from the pre-procedure,and may also undermine natural justice;Perfect,the academic circles have also raised corresponding questions: depriving the parties of the right to freely choose mediators,contradicting the provisions of the New York Convention,lacking review of mediation agreements,too rigid standards for charging fees,and lack of risk control systems;In view of the fact that the mode is not very practical,the academic community has also raised three questions: the difficulty of grasping the program conversion time,the difficulty of starting the mediation atmosphere,and the difficulty of evaluation.It is undeniable that these doubts have their rationality,but this should not be the reason for us to deny the mode of mediation in arbitration.On the contrary,it should be the starting point for us to improve the relevant rules.Based on the characteristics of mediation in arbitration and its doubts,the author believes that perfecting the rules of mediation mode in arbitration should follow the guiding ideology of “ respecting party autonomy ”,“ focusing on efficiency ” and“strengthening risk prevention”.The provisions of the “predetermination of the moderator” and “disclosure of information obtained during the mediation phase”follow up the relevant formal requirements of the Singapore Convention and draw on the relevant provisions on the collection of legal fees under the litigation mediation mode in China.On this basis,the specific procedure of the mediation mode in arbitration is carried out: in the initial stage of the mediation process,the stage of mediation advice is clearly defined,the obligation to inform the arbitrator before the initiation of the mediation process and the signing of the mediation process are initiated;In the implementation stage,determine the scope of mediation,suggestively improve the mediation environment,clarify the mediator's determination method and stipulate the mediator's information disclosure obligations;in the case of successful mediation,propose a “written form” to the mediation agreement.Requirements,according to the application of the parties to make an award or mediation according to the mediation agreement or to allow the withdrawal of arbitration,and flexible calculation of the arbitration fee;in the case of mediation failure,the circumstances and signs of the mediation failure to be transferred to the arbitration process should beclarified,and the arbitration fee should be flexibly calculated.Finally,a risk control system should be established,including strengthening training for arbitrators,establishing a system for returning parties,establishing an accountability system for arbitrators,and strengthening the review of mediation agreements.This paper is divided into three parts: The first chapter gives an overview of the mediation mode in arbitration.The second chapter mainly discusses the academic circles' doubts about the mode of mediation in arbitration.The third chapter mainly explores the perfection of the rules of mediation mode in arbitration.The fourth chapter mainly discusses the specific program design of the mediation mode in arbitration.