| With the coming of the 18th CPC Central Committee,a new round of judicial reform begins.It can be concluded that the reform starts from the very top system,and every measures are aimed at realizing fairness and justice.In civil lawsuit,court mediation system could be counted as the dispute resolution which gives fully respect to parties’ rights to settle their own problems and plays an irreplaceable role in ensuring fairness and justice.However,after times of judicial reforms,court mediation is far from a mature and effective system.Misunderstanding of social environment by judicial policies has a direct effect on application of court mediation.In the current judicial reform,what the court mediation should be like and should do?These questions attract author’s attention.On the basis of listing the relevant literature,the author find that as the judicial policies gradually pays emphasis on court mediation,the judicial practice is paying less attention on court mediation principles.Whether court mediation principles have been unable to meet the need of judicial practice?Whether the court mediation system needs to be reformed?To discuss these questions,this paper is divided into four parts:Part Ⅰ:Raising questions.This part summarizes the formation of court mediation principles during the revision of civil procedure law,uncovers the phenomenon of disobeying the principles of court mediation in practice,enumerates the challenging and reflection on problems of the court mediation both on theory and practice by scholars and judges,and urges the academic circle and judicial practice circle to restudy the court mediation principles that should be followed.Then the paper raises its question:reiterating the meaning of court mediation principles according to the changing attitude of court mediation by judicial policies in judicial reform and the phenomenon of devaluing the court mediation principles by judicial practice.Part II:Exploring the reasons.The trial reform and court mediation policies have great impact on the status of court mediation.Under the pressure of maintaining stability policies and Great Mediation Movement,the higher court counts the mediation rate into the judge’s evaluation to promote the conciliation practice.Many judges take compulsory mediation which disobeys voluntary principles,urge the parties to concede by breaking through the legal entities,and keep conciliating rather than make a fair judgment.The paper discusses the reason of failure of court mediation principles from three aspects.First,the court’s administrative management system fails the voluntary principle.Second,mediation-Trail mode rejects the principle of obeying the legal entities.Third,the court mediation practice dilutes the principle of ascertaining the facts&discerning between the rights and wrong.Part III:Discussing what court mediation should be.The paper considers that the nature of the court mediation and the inherent law of civil lawsuit decide the principle of court mediation.Thus,the paper reiterates the principle of court mediation from these two aspects.Taking fully use of personal rights is the very character of court mediation,which makes it different from trail although both of them are listed in civil procedure law.So,the court mediation should come back to its voluntary principle.As one of method for realizing civil procedure law’s task,court mediation is part of civil lawsuit system.Thus,it should obey the nature of civil procedure law,which is aimed at realizing personal rights and solving disputes.On the basis of legal entities and certain procedure,court mediation should come back to the principle of obeying the law and the principles of ascertaining the facts&discerning between right from wrong.Part Ⅳ:Proposing suggestions.The paper claims to activate the principle of court mediation according to the nature of court mediation and the civil procedure law,which is abided by the legislative intent.It also comes up with suggestion for reconstructing the court mediation in line with the new round of judicial reform.The specific methods are:abiding by the voluntary principle by turning the judge-led mediation pattern into parties-oriented model,which gives fully consideration to personal rights;building the "pretrial mediation mechanism" and the compulsory mediation procedure according to types of cases and hierarchy of courts,which are aimed at relieving pressure on the courts and saving judicial resource,and which the parties are able to freely determine the mediation host selected within certain ranges;practicing the court mediation after ascertaining the facts&discerning between right from wrong without breaking through the legal entities.If the court mediation fails,the case should go to trial without hesitation.If the parties still have intention to solve the dispute in a peaceful way,the judge should encourage them to reconciliate during the trail.If not,the judge should render a decision in line with the facts and law. |
