Research On The Pre-procedure For Mandatory Family Mediation

Family dispute is a complicated conflict between personal relationship and property relationship between family members.Compared with common civil disputes,this kind of dispute resolution between special subjects with kinship is more necessary and more suitable to adopt a non-confrontational mediation mechanism,so as to avoid intensifying family conflicts,repair,make up and properly handle family relationships to the maximum extent,promote family harmony and social stability.Family mediation has been widely used and improved in judicial practice.In 2016,the Supreme People's Court issued the opinions on People's Courts Further Deepening the Reform of Diversified Dispute Resolution Mechanism and began to explore the establishment of pilot mediation procedures for family disputes.The pilot work found that the court lacked the authority to start mediation procedures,which led to the court judges and family mediators need to spend a lot of energy to guide the parties to participate in mediation,forming a tension between the efficiency of dispute resolution and the occupation of judicial resources.In this regard,in 2018,the Supreme People's Court issued the Opinions of the Supreme People's Court on Further Deepening the Reform of Modes and Working Mechanisms of Family Trials(for Trial Implementation),which clearly implemented the pre-procedure of family mandatory mediation and gave the court the power to start family mediation procedures for some family cases.However,the practice shows that there is still something to be improved in the pre-procedure of family mandatory mediation,and it is worth reflecting on the principle of procedure initiation,the scope of application,the cultivation of family mediators and the review procedure of mediation agreement.This paper holds that the family mediation prepositional procedure is mandatory.By using case analysis,literature research and comparative research methods,this paper analyzes and adopts the theory of priority in family mediation,the theory of moderation in mandatory mediation and the theory of review of the essence of family mediation agreement,and studies and draws lessons from the mandatory factors of the prepositional procedure in foreign countries.It is suggested that the core of this paper is to unify the operation process of the prepositional procedure in family mediation,From the aspects of the starting of procedure,the definition of applicable cases,the improvement of legal specialization of mediation subjects and the effectiveness of mediation agreements,we should improve the pre-procedure of family mandatory mediation in China.Due to the special nature of family mediation is not open,the case analyzed in this paper is the author's internship and research and collection,it is difficult to comprehensively cover the family cases and the trial situation of the courts,in practice there is still room for further expansion of exploration.This paper consists of four chapters.The first chapter is the case analysis of the preprocedure of family mandatory mediation.This paper takes the practical operation since the pilot reform of the program in 2018 as the analysis object,and concludes that there are some problems,such as the lack of mandatory start-up of the program,the unclear scope of the case,the weak professionalism of the family mediator and the weak standardization of the mediation agreement review procedure.The second chapter clarifies the meaning of the family mandatory mediation,systematically analyzes the mandatory characteristics of the family mandatory mediation procedure,and clarifies that the court can start the family mediation procedure according to its authority,and the parties have the obligation to participate in the mediation.In-depth theoretical research,to provide theoretical basis and support for the systematic construction of the family mandatory mediation procedure.The third chapter analyzes the family mediation system with different characteristics in Japan,Taiwan area,Australia and California,summarizes the beneficial experience of the above countries or regions,and reflects on the optimization path of the family mandatory mediation pre-procedure in China,The author holds that China should formulate procedural safeguards,clarify the scope of mandatory mediation cases,the development of family mediator's legal specialization,and review mediation agreements in essence.In the fourth chapter,in the face of the existing problems and practical situation of the family mediation pre-procedure,it is suggested to unify the operation process of the family mediation pre-procedure,mandatory start the pre-procedure of the family mediation,define the scope of the family mediation prepositioning cases,improve the level of the legal specialization of the family mediators,and carry out substantive review of the judicial confirmation mediation agreement,so as to systematically construct the mediation agreement The pre-procedure of family mandatory mediation provides normative guidance for family trial practice.