Friday, 21 June 2013
The Mediation System in China
Definition and Types of Mediation
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 mediation: Mediation by a court of law in civil and economic disputes and minor criminal cases inside the court. For marital cases, inside-court mediation is a necessary procedure. Whether or not to seek judicial mediation is for litigants to decide. Mediation is not a necessary procedure. A court's mediation document is as valid as its verdict.
· Administrative 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 with legal provisions in specific civil disputes, economic disputes or labor disputes.
· Arbitration 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.
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. It was formalized in the early 1950s when the People's Republic was founded.
Article 111 of the Constitution of the People's Republic of China states, "People's Mediation Committees are a working committee under grassroots autonomous organizations - Residents Committee, Villagers Committee - whose mission is to mediate civil disputes."
Essentially, 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.
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 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 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:
· Close to the people;
· Enthusiastic about mediation;
· Knowledgeable 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 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 trials, help analyze cases and exchange experiences.
a) Mediation procedures
· Accept a dispute;
· Prepare for mediation;
· Reach agreement;
·?Close of mediation
b) Ways of mediation
Mediation can be direct, open, common or joint.
Mediation techniques include role-modeling, reasoning and resort to law.
People's Mediation Committees should not just passively mediate disputes; rather, they should actively seek to prevent and reduce civil disputes and prevent such disputes from escalating.
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 that courts may invite relevant entities or individuals to assist, and the invited entities or individuals should assist the courts in mediation.
2. Mediation Agreement
Article 88 stipulates 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 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 what the dispute is about, the facts, and the result.
The mediation document should be signed by the judge and the clerk and affixed with an official seal of the court. Then, it should be delivered to the parties. It becomes legally binding 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 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 before the mediation document arrives.
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