Research On The Pre-litigation Mediation Procedure In Family Disputes

In recent years,due to the increase in the number of family cases,as well as the particularity and complexity of family cases,the existing family dispute resolution mechanism can not meet the needs of a successful resolution of family disputes,so it is necessary to improve the family trial procedures,which also conforms to the concept and spirit of China's current family trial reform.As an important part of diversified dispute resolution mechanism,family mediation is of great significance for the proper resolution of family disputes.Based on the existing relevant provisions of family mediation,this paper explores the pre litigation compulsory mediation procedure for family disputes,which adapts to the judicial practice of our country,satisfies the irrationality of family disputes and the particularity of the relationship between the parties with an independent mediation procedure framework and procedural characteristics,realizes the better resolution of family disputes with the rationality of legislation and the sensibility of mediation,so as to save judicial resources and achieve family harmony And social stability.At present,our country has not yet established a relatively perfect family dispute mediation procedure.Based on the practice of family trial reform in our country and drawing on the experience of mediation before the family in foreign countries,this paper analyzes and discusses the construction of the mediation procedure before litigation in China.This paper is divided into four chapters.The first chapter gives a brief introduction to family disputes and family mediation.First of all,through the different elaboration of the connotation of family disputes by the scholars in the theoretical field,the author tentatively defines the concept of family disputes.On this basis,it compares the differences between ordinary civil and commercial disputes and family disputes,and summarizes the unique characteristics of family disputes.Secondly,the article expounds the concept of family mediation,analyzes the characteristics of family mediation,such as litigant,consensual and non confrontational nature,classifies family mediation,summarizes its essential characteristics,and highlights the advantages of constructing conciliation proceedings before family disputes.At the same time,the analysis of family mediation has the functions of saving judicial resources,realizing the agreement between legal principle and reason,harmonious interpersonal relationship,and maintaining social stability.Finally,based on the legislation and judicial practice,this paper summarizes the existing problems of family mediation in China.The second chapter,first of all,is based on the reform of family trial in our country,defines the basic direction of family trial reform and the role of family mediation,and analyzes the specific measures of the pilot court in the family trial reform.Second,in-depth analysis of many problems in the process of pre litigation mediation in the reform process,including the disunity of the scope of compulsorymediation before the litigation,the imperfect provisions of the compulsory mediation procedures before the family cases,the low occupation and specialization level of the mediation organizations and intermediaries.Finally,based on these problems,we explore the necessity of constructing mediation procedures before family disputes.The third chapter,from the perspective of comparative law,introduces the mediation procedures for family disputes in typical countries outside the country,including the United States,Australia and the mainland countries(regions)of Japan and Taiwan,China.Through the comparative study of mediation procedures before family disputes in different legal system countries,the characteristics and advantages of pre litigation mediation procedures for family disputes in extraterritorial countries are summed up,and its enlightenment and reference for constructing the pre litigation compulsory mediation procedures of family disputes in China are analyzed.In the fourth chapter,the author specifically explains how to construct the mediation procedure for family cases before litigation.First of all,the construction of the overall framework of the mediation procedure for family disputes before mediation is clear.The principle of mediation and separation and mediation prepositional principle are adopted in family mediation.Special family mediation agencies and independent family mediation procedures are established.Secondly,standardize the procedure construction of family mediation before litigation,including the procedure design of family mediation before litigation,and set the applicable rules of mediation subject.Finally,we should explore the connection between pre litigation mediation procedures and litigation procedures in order to achieve the independent value of mediation procedures before family disputes.