Judicial mediation

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Commercial courts

MEDIATION HAS BEEN the preferred mechanism for resolving disputes in China for a very long time. In recent decades, it has become increasingly popular in both civil law and common law jurisdictions. (For a discussion about mediation and the origin of the word, see China Business Law Journal volume 2 issue 9: Mediation or conciliation?) This column considers the issues that arise when mediation occurs during the course of judicial proceedings and examines a couple of related questions: should current judges act as mediators? If so, should the judge who is hearing a case act as a mediator in the same case? Similar issues arise in the context of arbitration.

The column commences with a discussion about the situation in mainland China. It then considers the situation in civil law and common law jurisdictions.

MAINLAND CHINA

The success of mediation in court proceedings in China is significant. According to statistics, the majority of cases accepted by courts are resolved by mediation. Mediation has therefore been a very effective mechanism for managing cases and resolving disputes in Mainland China. The basis for resolving civil cases by mediation is found in the PRC Civil Procedure Law (2017 Revision) (see Citation 1).

引文一 Citation 1

中国民事诉讼法

第九十三条 

人民法院审理民事案件,根据当事人自愿的原则,在事实清楚的基础上,分清是非,
进行调解。

第九十四条 

人民法院进行调解,可以由审判员一人主持,也可以由合议庭主持,并尽可能就地进行。

PRC Civil Procedure Law

Article 93

When trying civil cases, a people’s court shall, in accordance with the principle of the free will of the parties, conduct mediation on the basis of clear facts and by distinguishing between right and wrong.

Article 94

When a people’s court conducts mediation, mediation may be conducted by one judge or by the collegial bench, and mediation shall be conducted in situ to the extent possible.

In addition, the Supreme People’s Court has issued guidance on judicial mediation. The latest guidance is contained in the 2010 Notice on Issuing Several Opinions on Further Implementing the Work Principle of “Giving Priority to Mediation and Combining Mediation with Judgment”. This notice emphasises the importance of social harmony in the context of dispute resolution.

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葛安德 Andrew Godwin
葛安德
Andrew Godwin

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.