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 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.
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. 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 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.
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 by laws and respect universally accepted
morals."
c)
Basic principles
- 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:
- Enthusiastic about mediation;
- Knowledgeable about legal and policy issues;
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.
3.
Procedures
a)
Mediation procedures
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.
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 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.
