On The Change Of The Mediation Rate Of Civil Litigation In China

The mediation rate of civil litigation is an important indicator of justice statistics. The change of mediation rate of civil litigation in China showed the diversification of decline before2002, and ascent followed. It is hardly to say that the change of mediation rate has followed the "U" shape-line as some scholar called.From1978to2002, the mediation rate of first trial was always higher than the rate of the second trial and retrial of civil litigation. From1978to2002, the magnitude of the decline of the rate of first trial was higher than the rate of the second trial and retrial mediation. However, this change was reversed from2002. The mediation rate of second trial and the retrial litigation followde a rapid upward trend, the mediation rate of the first instance had only a slow rise.The mediation rate of three types of civil litigation (marriage and family affairs, contract, tort) followed the general trend, but showed a slightly different look. The sequence of the number accounted for there types of the civil dispute happened great change. Replaced the marriage and family disputes,contract disputes become the main target of the Courtl. In the past three decades, the number of contract disputes grew rapidly.Its proportion rose from less than2percent to more than50%. In contrast, the propotion of the other two types of disputes declined, even its number of dispute grew. The propotion of the dispute of marriage and family affairs declined from57.33%to23.37%. The propotion of the dispute of tort decreased from40.85%to23.63%. Compare three types of dispute resolution rate, we can find the difference between them. The first, the magnitude of change of the mediation rate was different. The magnitude of change of the mediation rate of marrige and family was the smallest. In contrast, the magnitude of change of the mediation rate of contrat and tort was severe. The second, there were different in the magnitude from2002. Although the mediation rate of marriage and family was always above40%, but its magnitude was very small.That was same to the contrat. The the mediation rate of tort rose fast.The analysis of the change of the mediation of contract and divorce dispute is the key to decode the change of the mediation rate of contemporary Chinese civil litigation. That is becouse contract dispute and divorce dispute occupy the major part of the civil dispute. The analysis found that the rapid decline of mediation rate in1978-2002, mainly due to the collusion of the parties and the court. On the one hand, with the advance of economic reform, a large number of contract disputes (mainly the borrowing、trade dispute) entered the court,which made the judicial workload for the Court. The amount of the contract dispute showed a rapid upward trend, which lowered the possibility of mediation. On the other hand, in order to deal with the conlict of increasing workload and the shortage of manpower, the court launched a trial reform to strengthen the burden of proof of the parties. This reform compressed the time of the communication and exchange between the court and the parties, resulting in regression of the function of court-mediation. The decline of the possibility of mediation and the reform of the rial model, led to the rapidly decline of mediation of contract dispute. During this period, the national governance on the bad debets of financial institutions, made the ajudication of the court become a link of the reform of state-owned enterprises. This aggravated the decline of the rate of contract mediation. In the progress of the change of the mediation rate of marriage and family, litigant> court and the state played different roles around the settlement of the divorce.The decline of the mediation of divorce is mainly due to the disaggrement on the partition of jointly owned property. For this reason, the instituion supplied by the state furtherly promote the parties in divorce to resort their dispute to court. In the process of coping with the demands of the parties in divorce, the court created therule of "a succeed divorce for twice tial" based on the constraints of the traditional value and the dilemma of the judgement on whether marital relations have been broken down. This rule led to the decline of the mediation rate and the increasing of the ajudication rate.Behind the practice in China’s Litigation Mediation, there exists multiple logic. There are the logic of the litigants, the logic of the court and the logic of the national givernance. These three kinds of logic had different influence on the pratice of the court mediation. In the progress of the change of the mediation rate, the logic of the litigants played a critical impact on the mediation. This mechanism performance for the following two aspects:First, the nature of the dispute has an important impact on the settlement-form of the case. Second, as consumers of the products of Justice, the evalution of the litigants on the court, will ultimately affect the national governance. We can make sure that the factor of the litigant is the key of the change of the mediation rate of china’s civi litigation. National governance and the coping strategies of the court, also had a important impact on the mediation rate changes, but they are only auxiliary factors of change.Into the new century, the slow rise of the mediation rate is the result of the the transformation of the judicial policy.However, the effect of the performance of the policy of mediation first, was not good as the publicity said. In fact, both the magnitude of the rise the mediation rate and the effect of the mediation, showed that the function of the transition of the judicial policy was limitied. A large number of mediation cases entered into the enforcement proceedings, showed that it was hard to achieve a harmonious effect through the administration mechanism. The "zero judgment" court competition activities launched by some courts, fully illustrated the court’s crazy for the mediation rate. The court’s pursuit of high mediation rate, could easily leads mandatory mediation and illegal mediation. It does not match to the law of the judicial operation to ask high mediation rate of second trial and retrial. At the same time, there are not inevitable connection with the mediation rate and harmony. We should take a scientific attitude to the mediation rate. It is necessary to fade the political aura of mediation rate, cancel the mediation rate assessment to the judge, and take strict limitation on the application of mediation to the Procedure of second and retrial instance.