On The Function Of The Court Mediation

The value of one institution is that it can meet our social needs, thus the design of a legal institution must take the social needs into consideration. The long-time existing institution of Mediation, as a litigant institution with"Chinese characteristic", shows its own vitality in today's China. The transition of the social backgrounds asks for follow-up changes of a specific institution, and in order to make it well-operated, we had better probe into Mediation's function in a theoretical perspective. This thesis intends to explore the essence of operation of Mediation in via of its functional analysis, and put forward some proposals for the new design of this institution and I wish I can do my pygmy effort to the realization of the"judicial harmony".The first chapter analyzes function of judicial mediation from theoretical angle. Differing from other kind of mediation, the judicial mediation is a kind of dispute-resolving procedure that parties share the equal opportunity of negotiating and reach an agreement in a free will under the administration of the court. Judicial mediation has four characters which are character of inner-installed, which means it cannot separate from the judicial procedure when we design the procedure, character of flexibility, character of parties'free will as well as the character of thoroughness for resolving the dispute. The ultimate function of judicial mediation is dispute resolution, but Mediation has its own specific function, which are order-maintaining and rights-realization. The judicial mediation focuses more on the value of order while judgment focuses more on the value of justice. The realization of this function relies on rationality of the parties and the design of the institution, the social structure and cultural tradition as well as the well-operation of judicial mediation.The second chapter reviews the evolution of our judicial mediation's function in a historical perspective. Through the research on ancient China's yamun mediation, I find out that its functions includes not only the order-maintaining and civilizing function, but some subsidiary functions, such as maintaining people's relationships and reducing the cost of dispute-resolving procedure. By the further research on the judicial mediation's transition in the ear of revolution and newly-established PRC, we can learn a lot how to run the judicial mediation effectively.The third chapter analyzes the problems of operation of judicial mediation's function from the institutional and operative angles.The fourth chapter reviews the judicial mediation in Japan, America and our country's Taiwan region and does some comparison with our present institution of mediation.The Fifth chapter analyze the way of realizing judicial mediation's function. The basic functions of judicial mediation includes function of order-maintaining, right-protection and jural education. And I propose the multi-ways to design our own institution of judicial mediation.