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Rational perspective of the Court Mediation System

Author: ZhangZuo
Tutor: JiangJiYue
School: East China University of Political Science
Course: Legal
Keywords: Court’s Mediation Conciliation on the Litigation Separation of Mediation and Trial Jurisdiction Judge
CLC: D926.2
Type: Master's thesis
Year: 2011
Downloads: 150
Quote: 0
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Abstract


Court’s mediation is our distinctive system and has been our dominant dispute resolution mechanism. In recent years, some judicial policies such as the socialization of court’s mediation and judicial activism further improve the court’s mediation. However, we can’t find the reasonable path to overcome the structural and technical defects of court’s mediation, and our court’s mediation system is facing some systematic difficulties. Rational perspective of the plight of court mediation system is the fundamental task of the court’s mediation system operation. The mediation and conciliation on the litigation in the Anglo-American law family and the civil law family provide some important practical wisdom for our court’s mediation. This article is divided into four chapters.The first chapter is about the overview of the basic theory of court’s mediation. Court mediation is a dispute settlement mechanism based on the autonomy of the parties. The socialization of court’s mediation changes the fixed pattern of the single subject for mediation, but this model has also brought new problems. Court’s mediation is a combination of party disposition behavior and the court trial behavior in which the parties’autonomy is dominant. Court’s mediation has the functions of dispute resolution, fact-finding and the process dialogue.The second chapter is about the comparison among the relevant system at home and abroad. This chapter details the court-annexed mediation in the United States, the court’s mediation in Australia, the mediation and conciliation on the litigation in Japan and Taiwan by the use of the comparative method , which are similar or close to our court’s mediation system. Then, the author summarizes five important procedural mechanisms for the reform of our court’s mediation system.The third chapter is about the development and plight of our court’s mediation system. In twenty years, the court’s mediation has shown the trapezoidal curve. The greatest challenge of court’s mediation system is the lack of an independent systematic position. Court’s mediation system has been regarded as the exercise of jurisdiction, and the parties can’t play the decisive role in the system. Therefore, the relationship between mediation system and judicial system has not been treated properly, the court’s mediation rate has been the most important appraisal index on the judges’performance, and mediation system has not strict procedures.The fourth chapter is about the reasonable construction of out court’s mediation system. This article analyzes in detail the advantages and disadvantages of the existing three court’s mediation models, the model of the separation of mediation and trial is more reasonable. Court’s mediation is a consensual type of independent dispute settlement mechanism, and should gradually fade the color of its exercise of jurisdiction. China should establish mediation period, mediation relief mechanism, the confirmation procedure on the mediation agreements for the judicial process and the confidentiality in the mediation.

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CLC: > Political, legal > Legal > Chinese law > Justice system > The court
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