| Resolving disputes through the agreement reached after equal and voluntary consultation by the parties is regarded as the legitimate foundation of the modern mediation system.At present,the consensus model of the mediation system described in academic research and policies and regulations in my country is guided by the principle of independent consensus of the parties.Specifically,relevant theoretical explanations and policy normative expressions all believe that mediation is the resolution of disputes through the agreement of the parties.It not only indicates that the right to choose and initiate the mediation procedure should be determined by the parties to the dispute through independent consultation;more importantly,the mediation agreement The final agreement should also be decided through voluntary consultation by the parties.That is to say,the consensual mode of mediation in my country’s academic interpretation and normative construction mainly contains two levels of meaning: first,equal negotiation between the two parties in the dispute;second,the two parties in the dispute resolve the dispute independently.In short,the equality,autonomy,voluntariness,and consistency of the intentions of the parties to the dispute constitute the basic characteristics of the current mediation theory research and relevant legal norms in my country.In contrast to the real practice of my country’s mediation system,the consensual mode of mediation presents a model that is quite different from theoretical research and the construction of institutional norms.By combing through the 556 real mediation cases published by China Legal Service Network,this article extracts three main practical forms of my country’s mediation consensus model,namely,the mediator-led consensus model,the mediator-induced consensus model,and the party autonomous consensus model.Among them,the characteristics of the mediator-led and induced consensus models are roughly the same,that is,the weakening of the parties’ voluntary degree and the weakening of the legitimacy of the consensus procedure.The characteristics of the party’s autonomous consensus model basically conform to the mediation system defined by my country’s theoretical research and normative construction,that is,parties are equal and autonomously agree to resolve disputes.However,the mediator-led consensus model and the mediator-induced consensus model constitute the main types of mediation practice in China,and only a small number of mediation cases present the parties’ autonomous consensus model.A comparative analysis of the practice patterns and the different mediation consensus models constructed by academic research,policies and regulations,this article believes that,on the one hand,my country’s judicial practice deviates from the spirit of autonomous consensus of modern mediation to a certain extent;on the other hand,the practice of my country’s mediation consensus model There is a complex relationship between the state and the mediation agreement outlined by the theoretical policy.The reason is that the mediation practice in China mainly presents a mediator-led and mediator-induced consensus model,mainly because the role of participants in the mediation process is not clear,the political function is prominent in the process of consensus formation,and the legal community thinking is absent.Reasons such as the failure of procedural norms and restrictions.Therefore,guaranteeing the equality and autonomy of the parties;the procedural guarantee mechanism for the formation of normative consensus is the main institutional direction for improving my country’s modern mediation system and solving the problem of the contradiction between theory and practice. |
