The Discussion Of Mediation Dilemma And Consciousness Of Right

“Conciliation cannot” refers to a kind of phenomenon, which although the judges ofpeople’s court try hardly to combine the judicial experience and mediation techniques withlocal actual, mediation is still getting more and more difficult. Advocating the mediationdirectly target is “problem done with case”, but the written reflection of “high rate ofmediation” points to the kind of dispute which is not easy to “done case but not problem”.According to comparing conciliation success with cases,“conciliation cannot” should not besimply imputed to the judging skills of judges because of the differentiation of the judges’conciliation skills. Mediation originate from “local society”, which means that theapplicability and utility of the mediation can only get into full play in the context of“acquaintance society”. Reciprocity is the constitution foundation of the relationship in “localsociety”, which is also related to the basic idea of “justice”; and trust is the foundation of theConfucian order of “local society”, also the basis of justice. Justice is the basic connotation ofrights consciousness. Along with the social change, traditional justice is gradually replaced bya new concept of “justice”. Villagers are no longer in accordance with the reciprocity and trustto establish social relations. They do not mainly measure the gain of them with their own payno longer, but with the others’ gain and loss for themselves. And they tend to be utilitarianbehavior and short-term behavior instead of valuing long-term benefits. Social interactionsbecome very unstable, contradictions appearing, disputes prone because of this. In addition,community self-organizing ability and the ability of dispute resolution extremely weak, andthe court mediation is difficult. Villagers’ rights consciousness involves in their participationof law, legal action, legal practice and legal institutions. It will appeared in what they say. Theconsciousness of rights can be decomposed into the right cognition, claims, and obligationsfor analyzing.The understanding of the villagers often out of intuition or based on the experience oflife in what kind of rights and rights for them, is not based on the rational knowledge of legalnorms, such as the exercise of rights and limit the scope of conditions, which made the judgeexplained to the villagers of the laws, but many villagers simply won’t listen. Collectiveconsciousness or common sense is the most basic measure and the legitimacy of standards ofthe rights knowledge and rights demand. Social change makes the traditional consensus collapsed; social change makes the ethics morals system disintegration and the absence ofmoral, ethical at the same time; Social differentiation makes the social identity standardreversed, the useless of ethics, and the silence of rural society and the lack of consensus.Villagers’ right knowledge is lack of legal reference and moral rationality, which means thatalthough the rights of villagers’ rights demand become more and more intense, these kinds ofrequirements are running counter to legal guide, so that it makes a lot of challenges for theprinciples of laws.Claims of consciousness reflect protection consciousness and initiative exercising ofrights for people. In traditional family, individual is just the embodiment of the bloodcontinues. Rural family structure changes lead to the patriarchal decline and the focus andvalue of family relations changes as well. Horizontal relationship instead of verticalparent-child relationships become a rural family relations of the main shaft, which madeprivate life developed and the growth of villagers’ individuality and subjectivity in the privatesector. Family intergenerational relationships changes from spiritual to material basis, filialpiety reduced; personal noumenon value basis so moved; social value or fundamental valueloss of relying on……So that, villagers not only ignored the respect for the rights of others,but also regardless of social respect to claim of its own interests.Basic relations of the traditional social network composed of regional, folk religion andfamily. Personal social status, social roes are building on it. The Chinese value beyond thespirit of “self” based on this. Traditional personal view all attach importance to the balance ofthe self and society. Starting from the late Qing dynasty, the traditional family, geopoliticaland faith community has been destroyed gradually, so that above self-value would collapseand the spirit of self and society separated. Individuals are both self and social not only as thesubjects of rights consciousness, also as the subjects of obligation consciousness. Rightsconsciousness and obligation consciousness is the unification of the self-consciousness andsocial consciousness. The reconstruction of the social consciousness needs the reconstructionof the rural public life. Community construction, participation in public affairs managementand organizing activities of folk culture is the important content of public life. Public moralsand inner culture can form in public life. Only exist widely accepted values and solid internalculture, it will work to encourage individuals aware of their social role and social expectationsand to encourage individuals to self needs coordinated with social needs. Loss of communitybuilding, space of civil society, public life declined, the villagers’ individuality and subjectivity development can only be limited to the private sector, apart from the collectiveconsciousness seriously, difficult to rebuild social consciousness. In the end, whether in thepublic domain or in the private sector, villagers’ groups and other personal sense ofresponsibility and sense of obligation is going to die, which means that villagers only willingto accept the laws of the benefits, but would not undertake corresponding obligation even toavoid as much as possible.Mediation is different from the decision. It doesn’t need to make a clear distinction,definition, identification of the parties’ respective right and wrong and the rights andobligations border. On contrary, mediation request the parties mutual concessions andcompromise which must be fuzzy boundary of rights and obligations, and the degree oftightness is better in the hands of the parties own instead of a judge. Both ancient andcontemporary, regardless of official civil mediation or conciliation, it is always at the expenseof the interests of one party (often is in the interests of the disadvantaged party). In the past,not all of the parties are willing to suffer this kind of sacrifice. But in moral lessons,community pressure and official pressure, the parties have to accept it. Now, villagers’ rightsconsciousness has grown up. They had armed themselves by “human rights, seriously rightsand fight for rights”. Their claims of personal gain become more justly. Refusing sacrificefinds not only legitimate reason also the moral legitimacy. At the same time, in the process ofthe growth of the villagers’ rights consciousness, the social consensus and community controlis weak; individual, society and the connection between countries is loose; and morals that nolonger work; community and country was no longer create pressure directly to the dispute; sothat the judge to convince the parties to sacrifice part of interests is also not so easy. Instead,when the villagers realized that the rule of the court mediation, some villagers will fully takeadvantage of it. Even if their claims is neither reasonable nor evidence to support, but as longas the judge undertakes intercessory to quell the dispute for the purpose, to participate in the“bargain” is likely to make them benefit, which makes them into a lawsuit with flukypsychology. Therefore, the official stressed that stimulate the villagers produce complexlitigation mediation motive and improper purpose of litigation.The growth of villagers’ rights consciousness and facilitated the villagers litigationreform measures makes more and more disputes into the judicial domain. In order to solve thedispute, resolving contradictions, the official stressed mediation, but the rights of thevillagers’ shallow cognition, extreme claims and the lack of obligation consciousness caused the phenomenon of “conciliation cannot”. In order to “done problem with case” and settledisputes better, mediation has been strengthened. But those kinds of disputes which will easilyappear “case done but problem still” still can’t be mediated. At the same time, the growth ofvillagers’ rights consciousness and official stressed that mediation is stimulate the villagers toproduce complex litigation motive and improper purpose. These cases are just the mostdifficult to mediate which means that “mediation dilemma” has formed.