Research On The Guarantee Mechanism Of Procedural Justice In Mediation Of Court

From the viewpoint of procedural justice, this paper reviewed our mediationsystem of court on the basis of introducing its development, and it put forward furtherthe construction path of the guarantee mechanism of procedural justice, trying tosolve the problems that are contrary to the justice, such as compulsory mediation, byreforming procedure in the existing judicial system and promote the process ofmodernization of court mediation system.This paper is divided into three parts, including introduction, text andconclusion.The introduction generally introduces the background of the revival of courtmediation and the problem that it faced and it emphasizes that it has great theoreticaland practical significance to take the procedural justice as the cornerstone of courtmediation in the modernization construction.There are five chapters in this text: the first chapter attempted to get the full viewof court mediation through dynamic, static, horizontal and longitudinal perspectives.Court mediation, which is presided over and affirmed by the judge after the partiesreach the agreement after voluntary consultation, is a kind of litigation activities tosettle the disputes and ways to conclude the case. Court mediation comes from thefeudal official mediation and it has an important position and effect in thedevelopment of thousand years. Court mediation declined in the1990s because ofpaying attention to judgment. But it revived again with the notion of HarmoniousSociety of Socialism with Chinese Characteristics in2004.The second chapter introduced the historical origin and development ofprocedural justice at first. Procedural justice is a kind of concept of justice at theprocedure level which can be traced back to the Principle of Natural Justice in RomanPeriod and then developed into the notion of Due Process of Law of Anglo-American law. John Rawls elaborated procedural justice classically and divided it intopure-procedural-justice, perfect-procedural-justice, imperfect-procedural-justice. Thischapter also affirmed that the procedural justice has independent values fromsubstantive justice and then pointed out several specific criteria of evaluation:(1)neutrality;(2) equality;(3) participation of the parties;(4) procedural rationality;(5)openness;(6) respecting the parties’ human dignity;(7) timely ended.The third chapter analyzed the necessity of procedural reformation. Firstly,because is a manner of using the jurisdiction, the power of the judge should berestricted by procedural requirements. Secondly, the agreement needed legitimacy ofsupport to be accepted by due process of law. At last, insisting on procedural justicewill be in favor of the realization of the goal of intermediation of court. Differentfrom the civil procedure, the goal of mediation of court is settling the disputesthoroughly.The forth chapter analyzed the problems in the procedure of our court mediation,mainly in the following areas: the confusion of the role of a judge under the system;compulsory mediation; barrier of participation of the parties in “back to back”mediation; problem for the plaintiff to make choice; exposure of the parties’ privacy;late decision and late justice.The fifth chapter pointed out six specific suggestions and measures to constructguarantee mechanism of procedural justice in court mediation: return to the judicialphilosophy that “mainly trial and complementarily mediate”; establish the principle ofself-willingness and neutrality; establish the conversion mechanism between lawsuitand mediation and give the parties option to choose the procedure; ensure themeaningful participation of the parties in the mediation process; keep the secret ofparties when the procedure convert; ensure the procedure ended timely and finally.