On The System Of Pre-Litigation Mediation

The pre-litigation mediation system is designed to guide the courts in conducting mediation among the parties to disputes during the period from the filing a claim to official acceptance of the claim by the court. With the deepening of China’s reform and opening-up policy and the further development of the economy, the number of disputes in society and economy has increased dramatically. The courts were facing increasingly pressure and suffered from shortage of staff when lawsuits caused by the aforesaid disputes are submitted to them. As a result, many courts have formulated certain rules and regulations on pre-litigation mediation mechanism in an effort to mitigate the pressure from the increased volume of lawsuits. However, as the regulations on pre-litigation mediation which were adopted by each court may vary from court to court, a lot of practical issues have arose, include among other things, the inconsistency in scope of application, initiation procedures, means of mediation and qualification of mediator. In addition, what made the matter worse was that some judges, in order to satisfy the internal quantitative requirement of the cases settled by mediation, forced or threated the litigants to conduct pre-litigation mediation who were not willing or not able to do so. Certain negative impacts have been caused thereby which include among other things, misunderstanding and reaction against the pre-litigation system from the litigants, a large number of lawsuits not being closed within the time limit under the law, litigants viewing their rights not being protected in a time manner and negative image of the courts.Article 122 of the Civil Procedural Law of the PRC(2012 Amendments), which provides that any civil disputes brought to the court may be mediated before trial unless the litigants refuse to mediate, has set down the legal principal for pre-litigation mediation system. Given that the pre-litigation mediation system in China is still at preliminary experimental stage in judicial practice, this article intends to elaborate the subject matter from the following four aspects:(1)Chapter I will discuss the general principal of pre-litigation mediation which starts from the definition of pre-litigation mediation, then compares the distinctions between pre-litigation mediation and mediation in other forms, and at the end summarize the features and forms of pre-litigation mediation. The purpose of Chapter I is to clarify the scope and procedures for the following analysis on pre-litigation mediation.(2)Chapter II will have a review and summarization of the pre-litigation mediation system in other jurisdictions. In this Chapter, a review on the pre-litigation mediation system of America, Japan, Germany, and China Taiwan shall be conducted and from which the features of the pre-litigation mediation system of these jurisdiction will be summarized. It serves as the fundamental for the suggestions to be given in Chapter IV.(3)Chapter III will set out the history, current situation and issues of China’s pre-litigation mediation system. In this Chapter, I will review the historic development of pre-litigation system in China and necessity of its existence, research and further development. I will also set out the current laws, regulations and other binding legal documents in China that are currently in force and the current judicial practice and thereafter point out the issues pertaining to pre-litigation mediation practice in various courts in China.(4)Chapter IV will give some suggestions on the improvement of China’s pre-litigation mediation system. Based on the discussions on general principal of the pre-ligation mediation, review of the systems of the other jurisdictions and the history and current situation of China’s pre-litigation mediation system, I will give the detailed suggestions on establishment of the fundamental principal that pre-litigation mediation must adhere to, identification of the legal status and application scope of pre-litigation mediation, respecting the selection of the litigants and separation of mediation and trial.