中国的调解制度（英）

　　Mediation 1 System

Definition and Types of Mediation

1. Definition

Mediation is an effort by a third party to encourage parties to a dispute to voluntarily reach an agreement to resolve their dispute.

2. Types of Mediation

There are currently four types of mediation practices in China:

Civil mediation: Mediation by People's Mediation Committees outside the court.

Judicial 2 mediation: Mediation by a court of law in civil and economic disputes and minor 3 criminal cases inside the court. For marital 4 cases, inside-court mediation is a necessary procedure. Whether or not to seek judicial mediation is for litigants 5 to decide. Mediation is not a necessary procedure. A court's mediation document is as valid 6 as its verdict.

Administrative 7 mediation: This can be outside-the-court mediation by grassroots governments such as a township government in ordinary civil disputes, or outside-the-court mediation by government departments in compliance 8 with legal provisions in specific civil disputes, economic disputes or labor 9 disputes.

Arbitration 10 mediation: Mediation by arbitration bodies in arbitration cases. Arbitration is called upon only if mediation fails to resolve the differences. This is also an outside-the-court mediation.

Civil Mediation

1. Nature, Mission and Principles

This system originated in ancient China and took shape in the 1930s when China was locked in a war against Japanese aggression 11. It was formalized in the early 1950s when the People's Republic was founded.

a） Nature

Article 111 of the Constitution of the People's Republic of China states, "People's Mediation Committees are a working committee under grassroots autonomous 12 organizations - Residents Committee, Villagers Committee - whose mission is to mediate 13 civil disputes."

Essentially 14, these committees are a supplement to the judicial system, an autonomous arrangement for citizens to resolve their own disputes. It is a legal practice with Chinese characteristics.

b） Mission

Article 5 of the Regulations for the Organization of People's Mediation Committees states, "The mission of People's Mediation Committees is to mediate civil disputes and, through such mediation, publicize laws, regulations, rules and policies and educate citizens to abide 15 by laws and respect universally accepted morals."

c） Basic principles

Reasonable and legal;

Voluntary, equal;

Respect for the right to sue.

2. Form of Organization

a） People's Mediation Committee

The Constitution and laws provide that the People's Mediation Committees are non-governmental organizations under Villagers Committees and Residents Committee for mediating 16 civil disputes. They operate under the guidance of grassroots government and courts.

b） People's Mediators

According to law, People's Mediators should have the following qualifications:

Impartiality 17;

Close to the people;

Enthusiastic about mediation;

Knowledgeable 18 about legal and policy issues;

Be adult citizens

c） Judicial Assistants

According to the Regulations for the Organization of People's Mediation Committees, People's Mediation Committees work under the guidance of grassroots governments and courts. Grassroots governments are set up at the township level. Judicial assistants are responsible for helping 19 People's Mediation Committees in their mediation work.

Grassroots courts supervise mediation committees through their tribunals. They invite members of the committee to participate in court-mediated cases, audit 20 trials, help analyze 21 cases and exchange experiences.

3. Procedures

a） Mediation procedures

Accept a dispute;

Prepare for mediation;

Mediation;

Reach agreement;

Close of mediation

b） Ways of mediation

Mediation can be direct, open, common or joint 22.

Mediation techniques include role-modeling, reasoning and resort to law.

People's Mediation Committees should not just passively mediate disputes; rather, they should actively 23 seek to prevent and reduce civil disputes and prevent such disputes from escalating 24.

Judicial Mediation

Article 35 of the Law on Civil Procedures of the People's Republic of China states, "When handling civil cases, courts of law should, based on consent of the litigants, mediate the cases on the merits of the cases themselves."

1. Ways of Mediation

Article 86 of the above-mentioned law provides that when mediating cases, courts may be presided over by a sole judge or by a collegiate panel and mediation should take place on the spot as much as possible. Courts may notify, in a simple way, the litigants and witnesses to appear in court.

Article 87 also specifies 25 that courts may invite relevant entities 26 or individuals to assist, and the invited entities or individuals should assist the courts in mediation.

2. Mediation Agreement

Article 88 stipulates 27 that an agreement between the litigants must be arrived at through the consent of all parties and should not be imposed on them; the contents of the agreement should not contravene 28 the law.

3. Mediation Document

a） Generation of the mediation document

Article 89 of the Civil Procedure Law says that if an agreement is reached between the parties after mediation, the court should prepare a mediation document, which should specify 29 what the dispute is about, the facts, and the result.

The mediation document should be signed by the judge and the clerk and affixed 30 with an official seal of the court. Then, it should be delivered to the parties. It becomes legally binding 31 after the parties sign it.

b） When a mediation document is not required

Article 90 of the Civil Procedure Law says that the court may choose not to prepare a mediation document under any of the following circumstances:

A divorce case that ends up with reunion through mediation;

Adoption 32 cases where the relation of adoption is sustained through mediation;

Cases that are enforceable immediately;

Other cases where a mediation document is not required.

Agreements for which a mediation document is not needed should be recorded in the court log and will become legally binding upon signature of the parties, judges and the clerk.

4. Failure of Mediation

Article 91 of the Civil Procedure Law provides that a court of law should adjudicate in a timely fashion if mediation fails to produce an agreement or if one party retracts 33 before the mediation document arrives.