Briefly describe the historical development and operation mechanism of mediation system.

First, the historical evolution and development of China's mediation system

As a dispute settlement system, mediation is the most vital and world-renowned legal tradition of the Chinese nation. Mediation has a long history in China. "As early as the bronze inscriptions in the Western Zhou Dynasty, there have been records of mediation. Since the Qin and Han dynasties, judicial personnel have mostly pursued the principle of mediation in litigation. In the Song Dynasty, with the increase of civil disputes, mediation showed an institutionalized trend. In the Ming and Qing Dynasties, mediation had reached a perfect stage. " In the Ming Dynasty, Shen Ming Pavilion was also set up in counties and towns, and posters were put up to affirm enlightenment. At the same time, local civil cases and minor criminal cases are mediated and resolved by township officials. 19 1 1 year, after the victory of the Revolution of 1911, Dr. Sun Yat-sen began to fully introduce the western legal system and establish a modern bourgeois political system. However, due to various reasons, this legal system failed to take root in China, and traditional mediation is still the first choice to solve disputes. By the time of War of Resistance against Japanese Aggression, in the Shaanxi-Gansu-Ningxia Border Region and the liberated areas under the leadership of the Productive Party, the judicial organs of the people's political power had established a mediation system, which closely combined trial with mediation and advocated the "Ma Xiwu trial law".

1956 the Supreme People's Court put forward the principle of "investigation and study, local settlement and mediation first"; 1964, this policy developed into a 16-character policy, that is, "relying on the masses, investigating and studying, solving on the spot, and giving priority to mediation". Since then, mediation has become the basic policy orientation of court trial in civil litigation in China for a long time. Under the guidance of this policy, some courts unilaterally pursue mediation rate as the standard to evaluate the quality of judges' handling cases, resulting in a large number of compulsory mediation cases. Therefore, when drafting 1979 civil procedure law (for trial implementation), China changed the principle of "mediation-oriented" to "mediation-oriented". The core of this principle is to require the court to handle civil cases on the basis of mediation, which runs through the whole trial process and ends with judgment only as a last resort. However, although this principle avoids "mediation first, then trial" in language, it still maintains the practice of mediation first and reconciliation first in essence, and there are still a lot of compulsory mediation caused by blind pursuit of mediation rate in practice.

199 1 year, China began to revise the civil procedure law (for trial implementation). The legislature revised the principle of mediation again, stipulating that "when trying civil cases, people's courts should conduct mediation according to the principle of voluntariness and legality. If mediation fails, a judgment shall be made in time. " Theoretical circles call it the principle of voluntary and legal mediation. At the same time, the legislature has also moved the provisions on mediation from "ordinary procedure" to "general provisions", which can not only avoid mistaking mediation as a necessary procedure before trial, but also show that mediation is applicable to trial procedures including first instance, second instance and retrial. The voluntary principle of legal mediation highlights voluntary mediation, making it more in line with the essence of civil litigation mediation in people's courts. At the same time, it denies "emphasizing mediation" and corrects the relationship between mediation and judgment.

In recent years, with the promotion of the reform of civil trial mode, although the rate of court mediation settlement has declined, it still accounts for a considerable proportion compared with judgment settlement. In the year of 20 14, the people's court in District D, where the author is located, accepted 3,703 civil cases and concluded 3,694 cases, of which 2,663 cases were settled through mediation, accounting for 72.09% of the cases concluded. It can be seen that for a long time, China's civil litigation mediation is a very important system for people's courts to solve disputes between parties.

Second, the current court mediation operation mechanism and its accompanying problems

At present, the market economy in China is developing at a faster speed. The essential characteristics of market economy are democracy, freedom, equality and independence. It emphasizes decentralization, autonomy and rights protection, and requires the state to intervene in economic relations as much as possible, fully respect the freedom of individual agreement and choice, and only regulate economic development from a macro perspective. This essential requirement of market economy is embodied in the civil litigation structure, that is to say, the court should fully respect the wishes of the parties and let them decide their own litigation behavior according to their own interests, while the court does not interfere with the parties' free exercise of litigation rights, let alone dispose of the free rights enjoyed by the parties instead of them.

In fact, in recent years, the academic doubts about court mediation mainly focus on the status of court mediation as "referee mediation". Because the judge's main identity in mediation should be "mediator", but this identity has always been difficult to grasp. The judge's final ruling power is undoubtedly the invisible pressure on the parties in court mediation. In judicial practice, the phenomenon of judge's "judgment", "procrastination", "induced mediation" and "compulsory mediation" frequently occurs, which makes it difficult for the parties to exercise the right of punishment and violates the principle of voluntariness. What's more, the judge will be preconceived, that is, when the parties involved in mediation refuse to sign the mediation book or the judge's mediation plan is not accepted, the judge may also make a judgment according to the mediation agreement or mediation plan, which leads to the confusion between mediation and judgment.

Third, the provisions of the mediation principle are not reasonable. Article 93 of China's Civil Procedure Law stipulates that litigation mediation must follow the principles of voluntariness of the parties, clear facts and distinction between right and wrong. The original intention of formulating the principle of clear facts and distinguishing right from wrong is to prevent some judges from ignoring the investigation of the basic facts of the case, unprincipled "muddling along" in mediation or insisting on mediation in cases that are difficult to find out. But this is the principle that the court should follow, which contradicts the principle that the parties agree to take it as court mediation. Moreover, our current trial mode reform emphasizes the combination of authoritarianism and polemicism, requiring judges to pursue legal facts rather than objective facts when determining facts. All these make the factors that produce this principle disappear, so this principle should be abolished.

A remarkable development of modern civil litigation is the improvement of litigant's litigation status and the restriction of judge's discretion. As the basic principle of court mediation, the principle of voluntariness is essentially to respect the parties' domination of independent rights, so as to really play the role of consensual settlement of disputes, otherwise compulsory or disguised consensual mediation can not be controlled. Now the court pays too much attention to administrative power in mediation. In order to complete the mediation rate, in order to mediate in a big way, sometimes mediation is necessary regardless of whether the parties are willing or not. The author laments why in modern society ruled by law, judges are bound by so many rules and regulations.

Fourth, the court mediation does not stipulate procedures, time limits, applicable rules and other issues, and the judge's mediation is too arbitrary. For example, under what circumstances it constitutes "mediation fails to reach an agreement" and under what circumstances it should enter the judgment procedure. The lack of this system constraint will lead to the judge forcing the parties to accept mediation in order to pursue the mediation rate when the parties have no willingness to mediate or cannot reach an agreement. As a system, court mediation is essentially "autonomy of will" and "coordination of interests", which requires that mediation cannot have strict procedural constraints like trial. However, this does not mean that court mediation can be a process dominated by judges at will. The current court mediation system in China lacks the constraints of procedures, time limits and applicable rules, which in fact leaves too much room for the arbitrariness of judges.

Fifthly, some regulations within the court have influenced the application of mediation. Some regulations within the court also limit the application of mediation. For example, most courts now stipulate assessment indicators such as mediation settlement rate, withdrawal rate, judgment rate in court and appeal maintenance rate. Judges have to mediate in order to complete the indicators, and even some cases that cannot be mediated have to be forced to mediate. These provisions will have an impact on the enthusiasm of judges in handling cases.

In essence, civil litigation mediation is a dispute resolution method with agreement as the core element. This agreement is an extension of the principle of autonomy of will in the field of private law dispute settlement. Compared with the trial, it is a kind of litigation. China's current civil litigation mediation system has played an important role in maintaining social stability and good social order for a long time. However, with the continuous development of market economy, the continuous improvement of legal system construction and the improvement of people's legal consciousness, the current civil litigation mediation system has begun to show its many disadvantages, which seriously restricts the process of legal modernization in China.

In practice, the conflict between the principle of a legally prescribed punishment for a specified crime and mediation in civil litigation, the alienation between the principle of voluntariness and mediation in civil litigation in judicial practice, and the conflict between the principle of finding out facts and distinguishing right from wrong and mediation in civil litigation in practice. Legitimacy is the premise of the effectiveness of civil litigation mediation, including procedural legitimacy and substantive legitimacy. The so-called legal procedure means that in the process of mediation, the conditions stipulated in the Civil Procedure Law should be met; China's civil procedure law stipulates that court mediation runs through the whole process of trial procedure, that is, it can be carried out at any stage of trial procedure.

But it also means that there is no independent mediation procedure. Therefore, civil litigation mediation tends to be non-procedural, which provides too much arbitrary space for judges, leading to the following problems: judges rely too much on mediation to close the case, leading to repeated mediation, long delay and low litigation efficiency. In China, the principle of voluntariness is the core of mediation principle, the premise of the healthy development of court mediation system and whether it can really play an effective role. In practice, the principle of voluntariness embodies two meanings: procedural voluntariness and substantive voluntariness. Procedurally, first of all, this voluntary principle is embodied in the fact that the parties agree to the people's court to mediate and resolve disputes or take the initiative to apply to the people's court for mediation and settlement of disputes. Secondly, under the control of the voluntary principle, the parties can request mediation at any stage of litigation. Once the mediation procedure is entered, the original litigation activities will be interrupted, which will easily lead to the arbitrary start of mediation, lead to the lack of coherence in the litigation procedure of the case, and have a negative impact on the trial work of the people's court. The principle of voluntariness should be embodied in the fact that the agreement reached by both parties through mediation in the people's court must be the result of mutual understanding, mutual accommodation and voluntary consultation. Civil litigation mediation is a flexible dispute resolution method based on mutual consent of both parties, and it is not necessary to find out the facts and distinguish right from wrong. As long as the agreement between the parties does not violate the prohibitive provisions of the law and the legitimate rights and interests of the third party, the contents of the mediation agreement should be allowed to be valid. The principle of finding out the facts and distinguishing right from wrong is obviously full of authoritarianism, and it is too absolute, which is not much different from the court's decision. If we emphasize clear facts and strict investigation, it will take time and money at the expense of procedural interests, thus ignoring the characteristics of civil litigation mediation itself, such as saving time and effort, saving judicial resources, being flexible and efficient. Compared with the judgment itself, the advantages of civil litigation mediation system can not be fully and effectively brought into play.

In order to better save limited judicial resources, realize the legal value position of mediation system in civil litigation, and maintain and promote social stability, we should pay more attention to the unique role of mediation in China's dispute resolution mechanism, sum up experiences and lessons, consider China's historical and cultural background and economic foundation, actively change our working concept, innovate the management model of mediation system, and speed up the legislative process. We should boldly learn from foreign advanced systems and practices, explore the specialization, socialization and construction of civil litigation mediation system, give full play to the function and role of civil litigation mediation in solving contradictions and disputes in the new period, and make it constantly improve our civil litigation mediation system. It is necessary to further improve the legal provisions, give full play to the function of judicial mediation, carefully mediate every civil and commercial dispute, and do our best to close the case, make the outcome clear and settle the dispute.

The above discussion is for reference only and I hope it will help you.