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Opinions of the Supreme People's Court on Further Deepening the Reform of the Diversified Dispute Resolution Mechanism of the People's Courts(Excerpt)

From: 清华大学法学院《中国商事仲裁法律汇编》         Updated: 2016-06-28

Fafa [2016] No. 14, promulgated by the Supreme People's Court on June 28, 2016, effective as of June 28, 2016.


II. Strengthening the Platform Construction

4. Improving the platform layout. The people's courts at all levels shall combine the construction of the coordinated litigation and mediation platform with the construction of the litigation service center, and establish a comprehensive service platform integrating litigation services, case filing registration, litigation and mediation coordination, petition letters and visits involving litigation matters, and other functions. The people's courts shall allocate special personnel to engage in the work of litigation and mediation coordination, establish a long-term working mechanism for litigation and mediation coordination, and based on the types of cases accepted within their respective jurisdictions, guide the relevant mediation, arbitration and notarization institutions or organizations to set up mediation offices or service windows in the litigation service center, or dispatch personnel to the dispute-prone areas and basic-level towns (streets) and villages (communities) to guide the work of litigation and mediation coordination.

5. Clearly defining platform responsibilities. The litigation and meditation platform of the people's courts shall be responsible for the following tasks: to appropriately segregate the litigation cases brought to the courts, and guide the parties to cases that are more suitable for dispute mediation to resolve the disputes through non-litigation ways; to carry out appointed mediation and entrusted mediation; to handle the judicial confirmation cases; to be responsible for the management of the register of special mediation organizations and special mediators; to strengthen the guidance of mediation work, promote the organic connections in terms of litigation and non-litigation dispute resolution procedural arrangements, effectiveness confirmation and legal guidance, and improve the joint work system involving the people's mediation, administrative mediation, commercial mediation, trade mediation and judicial mediation.

6. Perfecting the connection with the comprehensive administration organizations. The people's courts may, relying on the social security comprehensive administration platform, establish a dispute investigation and resolution coordination mechanism, and promptly report and carry out emergency response to mass disputes and major cases; establish a regular or special joint meeting system to form an interaction mechanism for dispute resolution featured information exchange, complementary advantages and collaboration and coordination.

7. Strengthening connection with administrative organs. The people's courts shall strengthen communication and coordination with administrative organs and promote the collaboration between litigation and administrative mediation, administrative reconsideration, administrative adjudication and other mechanisms. The people's courts shall also support administrative organs to conduct mediation or adjudication ex officio or based on applications filed by parties concerned, or handle the cases in other ways according to law. Furthermore, the courts shall support administrative organs or administrative mediation organizations in carrying out administrative reconciliation and administrative mediation work in such key areas as public security administration, social security, traffic accident compensation, medical and health care, consumer rights protection, property management, environmental pollution, intellectual property rights, and securities and futures.

8. Strengthening connection with the people's mediation organizations. Efforts shall be made to constantly improve the guidance of people's mediation work, promote the institutionalization and standardized construction of the people's mediation organizations, and further expand the scope and scale for the people's mediation organization to assist the people's courts in resolving disputes. We shall support the innovation and development of industry-oriented and professional people's mediation organizations in dispute-prone areas, establish and perfect a mediation organization network covering both urban and rural areas, and play a fundamental role in resolving civil disputes and grass-roots contradictions in a timely manner.

9. Strengthening connection with commercial mediation organizations and trade mediation organizations. We shall actively facilitate qualified chambers of commerce, trade associations, mediation associations, private non-enterprise units and commercial arbitration institutions in establishing commercial mediation organizations and trade mediation organizations to provide commercial mediation services or trade mediation services in such areas as investment, finance, securities and futures, insurance, real estate, engineering contracting, technology transfer, environmental protection, e-commerce, intellectual property rights and international trade. We shall also further improve the mediation rules and coordination procedures and make full use of the professional advantages of commercial mediation organizations and trade mediation organizations.

10. Strengthening connection with arbitration institutions. We shall actively support the reform of the arbitration system, and strengthen communication with commercial arbitration institutions, labor and personnel dispute arbitration institutions, and rural land contract arbitration institutions. We shall respect the rule of commercial arbitration and arbitration rules, duly handle arbitration institutions' applications for preservation, legally handle the cases in which the arbitral awards have been nullified or shall not be executed, and standardize the judicial review procedures for cases involving foreign affairs or foreign commercial arbitral awards. We shall support the improvement of the labor dispute arbitration system, strengthen the effective connection between labor dispute arbitration and litigation, and explore to establish new rules and systems for the unification of the standards for arbitration and review. We shall also strengthen the support and guarantee for the mediation and arbitration of rural land contract management disputes, realize efficient connection between arbitration and litigation of agricultural disputes, and promptly review and implement arbitral awards or mediation awards made by rural land contract arbitration institutions.

11. Strengthening connection with notary offices. We shall support notary offices to verify legal acts, facts and instruments according to law, support notary offices in handling the notarization of creditor's right instruments for the parties concerned with regard to the creditor's right or debt contracts or settlement agreements and mediation agreements with the payment contents which they have concluded, support notary offices in providing notarization related legal services, such as document service, evidence obtaining, preservation and implementation, and carrying out notarization activities or providing mediation services in civil affairs, commercial affairs and other areas. Notarized creditor's rights instruments shall be executed according to law.

12. Supporting trade unions, women's federations, the Communist Youth League organizations, law societies and other organizations to get involved in dispute resolution. We shall support trade unions, women's federations and the Communist Youth League organizations to participate in the resolution of labor disputes and disputes involving marriage and family issues and women and children's rights and interests. We shall support the law societies to encourage and organize legal professionals and legal workers to participate in resolving conflicts and disputes, and provide legal advisory services and mediation services. We shall support other communities and organizations to participate in resolving disputes related to their functions.

13. Making use of other social forces. We shall give full play to the National People’s Congress ("NPC”) representatives and the Chinese People's Political Consultative Conference (“CPPCC”) members, experts and scholars, lawyers, professional and technical personnel, basic-level organizations, community workers, grid administrators, old CCP members, old CCP cadres, elderly teachers, elderly intellectuals and elderly political and police officers in dispute resolution. We shall also support counselors, marriage and family counselors, registered accountants and college student volunteers to provide the masses with psychological counseling, assessment, identification, mediation and other services. We shall support the construction and improvement of charity organizations and urban and rural community service organizations, and encourage them to participate in dispute resolution.

14. Strengthening the construction of "one-stop" dispute resolution platform. In the areas of road traffic, labor disputes, medical and health care, property management, consumer rights protection, land contracting, environmental protection and other dispute-prone areas, the people's courts and administrative organs, people's mediation organizations and trade mediation organizations may integrate resources to promote the construction of "one-stop" dispute resolution service platform, thus effectively reducing the burden on the masses.

15. Innovation of online dispute resolution approach. We shall, according to the "Internet+" strategy requirements, promote the utilization of modern information technology in the diversified dispute resolution mechanism. We shall promote the construction of an information platform integrated with the functions of online mediation, online case filing, online judicial confirmation, online trial, E-supervisory procedures, E-service of legal instruments to realize case pre-assessment, information sharing, resource integration and data analysis concerning dispute resolution and promote the information technological development for the diversified dispute resolution mechanism.

16. Promoting the globalization of the diversified dispute resolution mechanism. We shall fully respect the diversity of legal culture of Chinese and foreign parties, and support them in voluntarily choose to resolve disputes through mediation, arbitration and other non-litigation means. We shall further strengthen exchanges and cooperation with judicial organs, arbitration institutions and mediation organizations of other countries and regions, enhance the competitiveness and credibility of China's dispute resolution mechanism. We shall give full play to the advantages of all types of dispute resolution approaches to continuously meet the diverse needs of Chinese and foreign parties concerned to dispute resolution and provide judicial services and guarantee for the implementation of major strategies of the State, such as the Belt and Road.


III. Improving Institutional Construction

17. Improving the mediation system involving specially invited mediators or mediation organizations. The people's courts may include organizations with mediation functions as specially invited mediation organizations, such as the people's mediation, administrative mediation, commercial mediation and trade mediation organizations; and may include qualified individuals as specially invited mediators, such as NPC representatives, CPPCC members, the people's jurors, experts and scholars, lawyers, arbitrators, and retired legal workers. We shall clearly define the responsibilities of the invited mediation organizations or mediators, formulate special mediation provisions, improve the special mediation procedures, improve the management of the register of specially invited mediation organizations or mediators, and strengthen construction of specially invited mediators and mediation organizations.

18. Establishing full-time court mediator system. The people's courts may appoint judges or judicial assistants who are good at mediation to serve as full-time mediators at the litigation service center and other relevant departments to engage in mediation work and the entrusted mediation work after case filing registration. If a judge presides over a mediation meeting and thus the mediation agreement is reached, the mediation document shall be issued according to law; if the judicial assistant presides over a mediation meeting and thus the mediation agreement is reached, the mediation document shall be issued according to law after the mediation agreement is reviewed by a judge.

19. Promoting the construction of lawyer mediation system. The people's courts shall strengthen communication with the judicial administrative departments, lawyers' associations, law firms and legal aid centers, include lawyers in the register of mediators specially invited by the people's courts, explore to establish lawyers' mediation offices, and encourage lawyers to participate in dispute resolution. The people's courts shall support lawyers to join various mediation organizations as mediators or support law firms to set up lawyer mediators, thereby giving full play to the professional advantages of lawyers. We shall establish a recusal system for lawyers who serve as mediators, wherein a lawyer may not serve as the mediator in a case meanwhile represent a party concerned to the same case; and promote the construction of a mechanism wherein lawyers shall remind their clients that they may choose to resolve disputes through non-litigation means.

20. Improving the construction of reconciliation and mediation system in criminal proceedings. With regard to public prosecution cases, private prosecution cases and civil suit collateral to criminal proceedings which may be handled through reconciliation or mediation according to the Criminal Procedure Law, the people's courts shall, together with public security organs and procuratorial organs, establish a mediation coordination mechanism for criminal proceedings and reconciliation between parties concerned to criminal cases. The people's courts may invite basic-level organizations, specially-invited mediation organization or mediators, or colleagues or relatives of parties concerned to participate in mediation to help the parties concerned reach reconciliation or mediation agreement.

21. Promoting the construction and improvement of administrative mediation, administrative reconciliation, administrative awards and other systems. The people's courts shall support administrative organs to carry out administrative mediation with respect to cases involving administrative compensation, indemnity or the exercise by administrative organs of the right of discretion as prescribed by laws or regulations; support administrative organs to, by providing factual findings, professional appraisal results or legal advice, guide and help the parties concerned to reach reconciliation through negotiation; and support administrative organs to legally render rulings on civil disputes that are closely related to administrative activities.

22. Exploring to establish the neutral assessment mechanism for civil and commercial disputes. The people's courts may, if conditions allow, explore to establish a neutral assessment mechanism in the medical and health, real estate, construction and engineering, intellectual property rights, environmental protection and other areas, and engage experts in related fields to serve as neutral assessors. With regard to cases involving civil and commercial disputes, the people's courts may advise the parties concerned to choose a neutral assessor, assist in the issuance of an evaluation report, and make a prediction on the judgment result for the parties' reference. The parties concerned may make reconciliation at their own discretion according to the assessment report or ask a specially invited mediator to mediate the dispute.

23. Exploring to establish a record mechanism for uncontested facts. At the end of the mediation proceedings, if the parties concerned fail to reach a mediation agreement, the mediator may, with the consent of the parties concerned, record in written form the facts on which the parties have no dispute during the mediation process, which shall be confirmed by the parties and affixed with the signatures of the parties concerned. In the proceedings, the parties do not need to produce evidence for uncontested facts that have been confirmed during the mediation process unless such facts involve national interests, social and public interests or the legitimate rights and interests of others.

24. Exploring to establish the recognition mechanism for the non-objection mediation scheme. If the parties concerned fail to reach a mediation agreement through conciliation, but have no major disagreement on the facts of the dispute, the mediator may, with the consent of the parties, propose a mediation scheme and serve the same on the both parties in writing. If the parties do not submit a written objection within seven days, the mediation scheme shall be regarded as a mediation agreement voluntarily reached by the two parties; if either party raises an objection in writing, the mediation shall be deemed to have failed. If the parties concerned apply for judicial confirmation of the mediation agreement, the people's court shall confirm it in accordance with the relevant provisions.


IV. Improving Program Arrangement

25. Establishing a dispute resolution notification procedure. The people's courts shall assess the litigation risks before registering cases, inform and guide the parties to choose the appropriate non-litigation ways to resolve disputes, and provide the parties with interpretation and counseling with regard to dispute resolution approaches, psychological consultation and general knowledge about litigation.

26. Encouraging the parties to reach reconciliation through mediation first. We shall encourage the parties to try to resolve disputes through mediation first and reach a mediation agreement. If the both parties have lawyers, the people's courts shall encourage the lawyers to guide the parties concerned to reach reconciliation first. Specially-invited mediators, relevant experts or other personnel may, according to application by the parties concerned or entrustment, provide complementary coordination and help for dispute resolution.

27. Exploring to establish the pre-mediation procedure. We shall explore to find out the scope and types of disputes to which the pre-mediation procedure is applicable. The qualified basic people's courts shall, on the basis of soliciting the views of the parties concerned, guide the parties to ask specially invited mediation organizations or mediators to do the mediation before the case filing registration if the cases only involve disputes over family issues, neighboring relations, small debts, consumer rights protection, traffic accidents, medical disputes and property management which are suitable for mediation.

28. Perfecting the appointed mediation and entrusted mediation procedures. With regard to cases submitted to the people's courts which are suitable for mediation, the people's courts may, before registering the cases, appoint specially-invited mediation organizations or mediators to conduct mediation. Where a mediation agreement is reached through appointed mediation, the parties concerned may apply for judicial confirmation of the mediation agreement. If the parties concerned explicitly refuse the mediation, the people's courts shall register the cases according to law. After the case filing registration or during the course of hearing, if the people's court believes that a case is suitable for mediation, it may, with the consent of the parties concerned, entrust a specially-invited mediation organization or mediator with the mediation. If a mediation agreement is reached through entrusted mediation, the mediation document shall be issued according to law after the mediation agreement is reviewed by a judge.

29. Improving the mechanism for separating complicated cases from the simple ones. With regard to civil and commercial cases that fail to be resolved through mediation, the mechanism for separating complicated cases from simple cases shall apply, i.e. handling the cases according to simple procedures, small litigation procedures, supervisory procedures or expedited ruling mechanism, to realize quick trial of simple cases and careful trial of complicated case. The people's courts shall perfect the system of imposing lenient punishment on violators who have pleaded guilty, and meanwhile shall further explore the reform of criminal case quick trial procedure, simplify the work flow, and build a multi-level litigation system supporting the common procedure, summary procedure and expedite trial procedure. Furthermore, we shall improve the system for separating complicated administrative cases from the simple ones according to provisions of the laws on administrative litigation.

30. Promoting the appropriate separation between mediation and adjudication. The people's courts shall establish an appropriate separation mechanism for mediation and adjudication in terms of personnel and procedures. A judge who conducts the mediation during the phase of case filing shall in principle not participate in the adjudication of the same case. In the course of hearing the case, if the parties are still willing to resolve the dispute through mediation, the judge conducting the adjudication may conduct the mediation.

31. Improving the judicial confirmation procedure. With regard to an agreement that is in the nature of a civil contract and is concluded through the mediation by an administrative organ, the people's mediation organization, commercial mediation organization, trade mediation organization or other organization with mediation functions, the parties concerned may apply with the basic people's court or tribunal of the place where the mediation organization is located to confirm the validity of the agreement. With regard to an agreement reached before case filing registration through mediation by a specially invite mediation organization or mediator appointed by the people's court, the application of the parties concerned for the judicial confirmation thereof shall be under the jurisdiction of the basic people's court of the place where the mediation organization is located or the court that has appointed the mediation organization.

32. Strengthening connection between the mediation and supervision procedures. With regard to a settlement agreement or mediation agreement including a payment in cash or negotiable securities, if the creditor, according to provisions of the Civil Procedure Law and the judicial interpretations thereof, applies with the basic people's court with jurisdiction for the payment order thereof, the latter shall issue the payment order according to law. If the debtor fails to raise an objection in writing within the statutory time limit and does not perform the payment order within the specified time limit, the people's court may enforce the payment.


V. Strengthening Work Facilitation

33. Strengthening organization and leadership. The people's courts at all levels shall further strengthen the organization and leadership of the work related to litigation and mediation coordination, and establish a working mechanism featured overall coordination and clear division of labor and responsibility. We shall actively seek support from party committees, the people's congress and government, and promote the formulation and promulgation of local documents for supporting the construction of the diversified dispute resolution mechanism, so as to promote the construction of a scientific and systematic diversified dispute resolution system.

34. Strengthening guidance and supervision. The people's courts at higher levels shall earnestly strengthen the guidance and supervision of the people's courts at lower levels and timely summarize the replicable experience in the reform of diversified dispute resolution mechanism. The high people's courts shall appoint specialized agencies, formulate implementation plans, gain thorough understanding of the work status, and actively carry out the evaluation and selection of the model courts in the reform of diversified dispute resolution mechanism within their respective jurisdictions. The intermediate people's courts shall strengthen the guidance and supervision of the basic people's courts, and facilitate the reform of the diversified dispute resolution mechanism in achieving more tangible results.

35. Improving the management mechanism. We shall establish a case management system involving litigation and mediation coordination, and include appointed mediation, entrusted mediation, mediation by full-time mediators, judicial confirmation and other relevant information into the case management system and judicial statistics system. We shall also improve the system for the management of specially-invited mediation organizations and mediators as well as courts' full-time mediators, and set up a reward and punishment mechanism.

36. Strengthening the training of mediators. We shall improve the training mechanism for specially invited mediators and full-time mediators, cooperate with relevant departments to promote the establishment of the qualification system for professional mediators, step up efforts in building the professional ethics, and improve the mediator professional evaluation system.

37. Strengthening fiscal guarantee. The people's courts at all levels shall take the initiative to enlist the support of the party committee and the government, include the dispute settlement funds into the special fiscal budget, and actively explore ways to entrust the dispute resolution to the social forces by such means as procurement of services. We shall support commercial mediation organizations, trade mediation organizations, law firms and other organizations, according to market-oriented operation patterns, to provide dispute resolution services to the parties concerned based on their needs and charge appropriate fees.

38. Using litigation cost as a leverage. If the parties concerned have reached a settlement on a voluntary basis and thus apply to withdraw the lawsuit, they shall be exempted from paying for the case acceptance fee. Where the parties accept the court's entrusted mediation, the people's court may appropriately reduce the litigation costs. Where a party refuses to participate in mediation without a good cause, or fails to perform a mediation agreement or intentionally delays in litigation, the people's court may increase the burden of its litigation costs in light of actual situations.

39. Strengthening advocacy work and theoretical research. The people's courts at all levels shall vigorously advocate the advantages of a diversified dispute resolution mechanism and encourage and guide the parties concerned to give priority to non-litigation ways to settle disputes with lower costs and less confrontation, which meanwhile may help restore relationships. We shall establish a modern dispute resolution concept of "State-led, judicature as the driving force, social participation, joint efforts of all sectors and protection by the rule of law" and create a social atmosphere of honesty and friendliness, rationality and peace, civilization and harmony, and innovation and development. We shall strengthen exchanges and cooperation with political and legal institutions, scientific research institutions and other units, actively promote the transformation of research results, and give full play to the guiding role of the theory of diversified dispute resolution in the judicial practice. We shall also, by reference to experience in other areas, carry out in-depth study of the functions of the people's courts in the diversified dispute resolution mechanism.

40. Promoting the legislative process. The people's courts shall timely sum up the successful experience in the reform of diversified dispute resolution mechanism, and actively support the formulation and promulgation of the relevant local laws and regulations and local government regulations in light of the local conditions, so as to promote the legislative process of relevant laws at the national level, institutionalize and legalize the reform practice results, and promote the healthy development and reform of the diversified dispute resolution mechanism according to the rule of law.



 

*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.