Reflections On Development And Improvement Of Judicial Mediation System

Judicial Mediation System (hereinafter referred to as "JM" System), as a fine tradition in China and "oriental experience" in other countries, has great positive effect on solving civil disputes. However, in practice, the system also causes some negative effects due to the changes of judicial notion and the judicial circumstances. These negative effects result in public complains and criticism from the academic world. With the development of the judicial system and the improvement of the marketing economic system, more and more defects and disadvantages are found. Therefore how to develop and improve the JM system has been a hot issue both for judicial practitioner and the academics.This paper concentrates on the system of separation mediation from trial. It bases on analyzing the current situation of China's JM system and comparing China's system with foreign mediation, conciliation regulations and practices, putting forward the opinion that there should be some appropriate separation of mediation from trial and some detailed measures should be taken.There are four chapters included:The first chapter: this chapter focuses on the definition and legal functions and characteristics of the JM System. Firstly, define the notion of JM by analyzing the comments and definition from the academics. Secondly, by analyzing the comments on the characteristics of JM from different schools, the author tries to reach the conclusion that the nature of JM is "voluntary". The paper further discusses the functions of the JM System. The second chapter: this chapter uses canonical parse and empirical analysis. Firstly, by analyzing the development history of China's JM system, based on the basic principles of JM and some general regulations on JM , the paper discusses the characteristics of JM. Secondly, by employing the empirical analysis, the author make use of his own practising experiences and the field work to generalize the current JM system, propose some suggestions for development and at last reach the conclusion that there is a necessity to separate mediation from trial.The third chapter: this chapter introduces some legislations and judicial practice experiences in some other countries and areas. By comparing the litigation conciliation system in those countries with China's JM system, the paper generalizes their experiences and considers the possibility of separation of mediation from trial in China by referring to their experience.The forth chapter: this chapter focuses on the details of how to construct the separation system. By analyzing the various theories on the separation mediation from trial system, the paper proposes the general tentative construction of separation system and the detailed measures.