1. Overview of Court Mediation (1) The Concept and Characteristics of Court Mediation Court mediation means that under the auspices of the judges of the People’s Court, the litigants reach an agreement and resolve disputes through voluntary negotiation. its activities in civil disputes. Court mediation is an important form for the people's courts to hear and resolve civil disputes. It is a litigation activity. Compared with other forms of mediation, court mediation has the following three characteristics: First, court mediation is a litigation activity. Second, court mediation is a combination of the court’s exercise of judicial power and the parties’ exercise of disposition power. On the one hand, court mediation is a way for the court to hear civil cases; on the other hand, court mediation must also be based on the exercise of the parties' right to dispose. Third, court mediation is a way for the People's Court to conclude civil cases. Through court mediation, both parties voluntarily reach an agreement, which is reviewed and approved by the court. Once the mediation letter is delivered to both parties and signed for receipt, it will become legally effective, thus ending the litigation process. (2) The evolution of court mediation 1. During the New Democratic Revolution Period The principles of court mediation stipulated in my country's Civil Procedure Law are a summary of the successful experience in judicial work since the New Democratic Revolution period. The famous "Ma Xiwu Trial Method" is a typical example of court mediation during this period. The "Ma Xiwu trial method" emphasizes relying on the masses and investigation and research, combining trial and mediation, and using mediation as the main way to hear and resolve civil disputes. During this period of court mediation, some areas proposed the eight-character policy of “mediation as the mainstay and trial as the supplement”. 2. From the founding of the People's Republic of China to 1982 After the founding of the People's Republic of China, my country's civil trial work inherited and carried forward the fine traditions of judicial work for the people in the base areas, and still regarded mediation as the basic method for hearing civil cases. In 1956, the Supreme People's Court put forward the twelve-character policy of "investigation and research, local settlement, and mediation first" on mediation work, which later developed into the sixteen-character policy of "relying on the masses, investigation and research, mediation first, and local settlement". word policy. In 1982, our country promulgated the first Civil Procedure Law after the founding of the People's Republic of China. Based on summarizing our country's experience in civil trial work, this law overcame the shortcomings of the original emphasis on "mediation as the mainstay" and established the "emphasis on mediation". The principle of "mediation" means that when hearing civil cases, the People's Court should focus on mediation, and if mediation is ineffective, it should be adjudicated in a timely manner. 3. The principle of "emphasis on mediation" in the Civil Procedure Law in 1991 still highlights the superior status of mediation over judgment. In addition, the formulation of "emphasis on mediation" lacks scientific validity. When the Civil Procedure Law was revised in 1991, this principle was changed to The principle of "voluntary and legal mediation" means that when hearing civil cases, people's courts should conduct mediation based on the principles of voluntariness and legality. If mediation fails, they should be immediately adjudicated. This principle emphasizes the voluntariness and legality of mediation in our country's court mediation system. The development process is a process of understanding the nature of mediation and a process of correctly understanding the relationship between mediation and adjudication, two ways of resolving civil disputes, in my country's civil trials. In academic circles, some people advocate the abolition of "court mediation." " principle, and believe that the advantages outweigh the disadvantages. We believe that this argument is too subjective. It is true that when implementing court mediation, some courts have a one-sided pursuit of the success rate of mediation, but this is no longer the mainstream. Court mediation is theoretically , or in practice, its role cannot be underestimated. (3) The significance of court mediation. Judicial practice has proved that court mediation has the following important significance in civil litigation: 1. Court mediation is conducive to timely and thorough resolution. Civil disputes between parties. 2. Court mediation is conducive to resolving conflicts and promoting unity among parties. 3. Court mediation is conducive to legal promotion and prevention and reduction of litigation.
2. Application of court mediation principles ( 1) Scope of application of court mediation The scope of application of court mediation includes the following aspects: 1. Applicable cases. Generally speaking, all cases involving civil rights disputes where mediation is possible can be resolved by the People's Court through mediation. 2. Applicable procedures. The principle of court mediation applies to the entire trial process of resolving disputes over civil rights and obligations, including: first-instance proceedings, second-instance proceedings, and trial supervision procedures. However, mediation is not applicable to non-litigation procedures and enforcement procedures. Principles. (2) Principles that court mediation should follow According to the provisions of the Civil Procedure Law, when courts use mediation to hear civil cases, they should abide by the following three principles: 1. The principle of voluntariness means that the people's court uses mediation to resolve cases. Disputes must be conducted on the basis of the voluntariness of the parties, including the conduct of mediation activities and the conclusion of a mediation agreement, all of which must be premised on the voluntariness of the parties. (1) Procedural voluntariness refers to whether to resolve the dispute between the parties through mediation. Disputes between parties depend on the will of the parties. The People's Court cannot mediate ex officio without the consent of the parties or force the parties to accept mediation. The specific manifestation is that the parties submit an application for mediation to the People's Court or the judges enter the mediation process with the consent of the parties. ; (2) Substantial voluntariness means that the content of the mediation agreement reached through mediation must be the true expression of intention of both parties. It can be an agreement formed after negotiation between the parties, or it can be a solution provided by the court and approved by the parties. Agreement. 2. Find out the facts and distinguish the principles of right and wrong.
The principle of ascertaining facts and distinguishing right from wrong means that the People's Court's mediation of civil cases should be conducted on the basis of clear facts and a clear distinction between right and wrong. Ascertaining the facts and distinguishing right from wrong is not only an institutional requirement for the People's Court to exercise its judicial power in mediation, but also the key to the success or failure of mediation. 3. Principle of legality. The principle of legality means that mediation by the People's Court must be conducted in accordance with the law, and the mediation process and the content of the mediation agreement reached must comply with the provisions of the law. (1) Procedural legality means that the mediation activities of the people's court should be carried out in strict accordance with the procedures stipulated by law, including the start of mediation, the method and steps of mediation, the organizational form of mediation, the formation of mediation agreement and the delivery of mediation letter etc., must comply with the provisions of the Civil Procedure Law. The second is physical legality. (2) Substantive legality means that the content of the agreement reached through mediation is legal. The legality of the contents of a mediation agreement should be understood as legal as long as the contents of the mediation agreement do not violate the provisions of laws and regulations and do not damage the legitimate rights and interests of the country, society and others. This means that the legality of the content of the mediation agreement does not depend on the strict application of the provisions of substantive law, which is different from the legality of the content of the judgment. (3) Issues that should be noted in understanding the principles of mediation Mediation and judgment are both ways for the People’s Court to exercise its judicial power to resolve civil disputes. Although court mediation is one of the basic principles established by the Civil Procedure Law, it cannot therefore be considered that mediation is a better way to resolve cases. The case was concluded by judgment. When dealing with the relationship between the two, the following points should be noted: First, when hearing civil cases, the people's court can use either mediation or judgment on a voluntary basis, and the people's court should reasonably choose and apply according to the specific circumstances of the case; Second, mediation is not a necessary procedure for the People's Court to hear civil cases. The People's Court can directly make a judgment without mediation and on the premise of ascertaining the facts; third, even if the parties are willing to mediate in civil cases, the People's Court cannot If the mediation remains unresolved for a long time, the mediation fails, or the party regrets before the mediation letter is served, the People's Court shall make a judgment in a timely manner.