Research On Pre-procedures For Mediation Of Family Disputes In China

Under the background of building a harmonious socialist society,the family,as the basic unit of social composition,is an important foundation for social harmony.If family disputes are not handled properly,it will not only affect the relationship between family relatives,but also affect the stability and harmony of the society.Compared with adversarial litigation,mediation has obvious advantages in handling family disputes because of its flexibility and softness.In 2016,the Supreme People’s Court promulgated the "Opinions on Further Deepening the Reform of the Multi-Dispute Resolution Mechanism of the People’s Courts"(hereinafter referred to as the "Reform Opinions"),which proposed to actively explore the pre-mediation procedures,and the relevant courts participating in the reform of family trials also participated in the pilot work,Practical exploration has been carried out.but the Opinion does not provide detailed provisions on the pre-mediation procedure,resulting in different practices of pilot courts and many problems.In view of this,this paper adopts literature analysis method,empirical analysis method,comparative analysis method and other methods,Drawing on the beneficial results of the pre-procedures for mediation of foreign family disputes,And combined with the reality of our country,Put forward feasible suggestions on the legislation and judicial practice of the pre-procedures for mediation of civil disputes in China,In order to build a socialist family dispute mediation pre-procedure with Chinese characteristics.Under the request of General Secretary Xi Jinping to "persist on the non-litigation dispute resolution mechanism and reduce the increase in litigation from the source",it is necessary to correctly grasp the connotation of the pre-procedure of family dispute mediation.The author summarizes the concept of the pre-procedure of family dispute mediation from relevant legislation and practice,that is,before the case is registered,family cases suitable for mediation shall not enter the litigation procedure without court mediation.The mediation pre-procedure is different from the traditional mediation procedure in that it presents the characteristics of "mandatory" and "preliminary",However,the "mandatory" of the pre-mediation procedure is only reflected in the mandatory initiation of the procedure,The parties are not forced to sign a mediation agreement,so the parties still have the absolute right to decide the outcome of the mediation.Placing the mediation procedure before the litigation procedure has certain social and judicial effects,which is conducive to maintaining family stability,promoting social harmony,and realizing the rational allocation of judicial resources.At the same time,the relevant legislations of many countries and regions outside the territory are relatively mature,and after long-term practical tests,many advanced practices can be used for reference,my country has also explored many beneficial results in the reform of family trial,which provide a legitimate basis for the construction of the pre-procedure for mediation of domestic disputes in our country.However,due to the lack of legislation and a lot of theoretical disputes,the pilot courts have shown different appearances in the process of practical exploration.Although this provides many lessons for the improvement of legislation,it damages the unity of the procedure to a certain extent.In the process of reviewing the practice of various courts,the author found that there are four main problems in the pre-procedure of mediation of civil disputes in our country: irregular operation of procedures,unprofessional mediation organization,inconsistent scope of mediation,and short mediation period.Based on this,the author puts forward corresponding countermeasures through comparative analysis method,drawing on the experience of foreign countries and regions and combining with the beneficial exploration of judicial practice in my country.In terms of legislation,the pre-procedure of family dispute mediation should be legislated to achieve proper separation of mediation and trial.In terms of running programs,a "binary priming" model should be constructed,combining a consensual induction mechanism with forced priming.The initiation of the procedure is guaranteed through the adjustment of litigation costs or the penalty system,and at the same time,a return visit mechanism is established to ensure the performance of the case.In terms of mediation organization,establish a mediation model attached to the court,and adopt a mediation model combining mediation judges and mediators.In terms of the scope of mediation,it should be noted that the application of the pre-mediation procedure for family disputes is limited.The author believes that my country can adopt the method of "listing of case types" to scientifically define the scope of family disputes applicable to the pre-mediation.In terms of the mediation period,the flexible mediation period is adopted to solve the problem of insufficient mediation period and judgment by pressure regulation.