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Rethinking and Perfecting Court Mediation in China

Author: ZhaoXin
Tutor: SunXinQiang
School: Shandong University
Course: International Law
Keywords: court mediation court-sponsored mediation differences between the east and the west mediation reform
CLC: D926.2
Type: Master's thesis
Year: 2008
Downloads: 454
Quote: 3
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Abstract

Starting with the definition concerned, this paper reveals, by means of comparing the differences between court mediation, ADR and relevant concepts, on-going reforms happened in the court mediation system in China. By providing the idea of learning from the court-sponsored mediation system in US, the paper makes comparison between litigation intension, society ground and other elements of the two countries to come to the conclusion that the reform of the court mediation system should be based on the equity of acceptability and enforcement.The paper is divided into five parts: Part I introduce the relevant concepts and basic theories of court mediation system. PartⅡto PartⅣare the main parts of the paper, which cover the development, value and puzzledom of the reform of court mediation system, and bring forward the opinion of learning from the court-sponsored mediation system in US. PartⅤprovides some suggestions on the reconstruction of court mediation system.As a way to settle disputes, the court mediation system had a long history and played an important role in China. However, since the 80s, with the prosperous theme of litigation, the traditional court mediation way began to show its own drawbacks. As the times goes by, in recent years, the court mediation system starts to shine again based on several factors, for it meets the requirements of equality and fairness the public need, and the parties also want to have an efficient way to solve their issues. But the court mediation system still faced many difficulties, which include the problems in the system itself and in the practical way. Since the world is undergoing extensive communications, we need to learn from the western world. The court-sponsored mediation system in US is a good one for us to explore.The court-sponsored mediation system of US and court mediation system of China varies in several ways. The American treats the world in an antagonism way, while the Chinese believes the world is composed in a harmony way. The antagonism leads the American to solve disputes with the reference of law, while the harmonization makes the Chinese to solve disputes with the reference of relations. Since the Chinese are more focusing on the human relations and social stability, the idea of rational analysis and law paramount is lacked in our country. Thus, if we ignore our social reality and simply copy the US system, the result will definitely be a disaster.A constructive conclusion is drawn in the last part of this paper that we shall seek equity between acceptability and enforcement. Not only keep the acceptable essence of mediation, but also put the enforcement element in it to reinforce the effect. What’s more, we could consider to set up mediation agency according to the court level through a private way, so as to exert an excellent influence on the court mediation system.

Rethinking and Perfecting Court Mediation in China

Abstract

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