Opinions of Beijing Higher People's Court on Encouraging Social Participation in the Mediation of Commercial Disputes

 2018-06-21  28


· Document Number:No. 383 [2009] of Beijing Higher People’s Court

· Area of Law: Judicial Assistance Legislative Affairs

· Level of Authority: Local Judicial Documents

· Date issued:08-28-2009

· Status: Effective

· Issuing Authority: Beijing Municipality

 

Notice of Beijing Higher People's Court on Issuing the Opinions of Beijing Higher People's Court on Encouraging Social Participation in the Mediation of Commercial Disputes
(No. 383 [2009] of Beijing Higher People's Court)
Beijing No.1 Intermediate People's Court, Beijing No.2 Intermediate People's Court and Beijing Intermediate Railway Transport Court,
The people's courts of all districts and counties, and all intermediate railway transport courts,
The Opinions of Beijing Higher People's Court on Encouraging Social Participation in the Mediation of Commercial Disputes, which were discussed and adopted by the Judicial Committee of Beijing Higher People's Court on August 17, 2009, are hereby printed and distributed to you. Please earnestly implement them by taking into account the judicial practices.
August 28, 2009
Opinions of Beijing Higher People's Court on Encouraging Social Participation in the Mediation of Commercial Disputes
(Adopted at the 13th meeting of the Judicial Committee of Beijing Higher People's Court on August 17, 2009)
For purposes of further popularizing and introducing the work mode of social participation in the mediation of commercial disputes, encouraging and regulating the social participation in the mediation of commercial disputes, timely and effectively eliminating the disputes, stopping the disputes and ceasing the lawsuits and promoting social harmony, we hereby put forward the following opinions in accordance with the Civil Procedure Law of the People's Republic of China, Provisions of the Supreme People's Court on Several Issues Concerning the Civil Mediation Work of the People's Court, Several Opinions of the Supreme People's Court on Further Giving Play to the Positive Roles of Litigation Mediation in the Building of a Socialist Harmonious Society, Some Provisions of the Supreme People's Court on Trying Civil Cases Involving the People's Conciliation Agreements and other laws and judicial interpretations, while taking into account the actual situation about the trial of cases of commercial disputes by the courts of this Municipality:
I. To enhance the awareness, extend the thought, clarify the aims and requirements and give full play to the important roles of the work mode of social participation in the mediation of commercial disputes, in eliminating conflicts and promoting harmony
1. To give full play to the social strength and employ diversified channels, modes and approaches to solve disputes and eliminate conflicts. Under the background of international financial crisis, the commercial disputes are becoming more and more complex. Due to the sharp conflict of interest, the confrontation between the parties concerned makes the trial of cases more difficult and how to timely and effectively cease and eliminate these conflicts is a significant task which the courts at all levels in this Municipality must face and accomplish in the trial of cases of commercial disputes. To follow the principle of “giving priority to mediation” and popularize and improve the work mode of and the experience in social participation in mediation in the practices of trial of cases of commercial disputes may mitigate the litigation burden of the parties concerned, save judicial resources, lower the litigation costs, help to realize the integrity of legal effects and social effects and help to promote social harmony.
2. To extend the mediation thought. To hire professional associations and other social groups, relevant departments, enterprises, public institutions or other organizations and individuals to act as specially invited mediators of the people's courts to participate in the mediation of commercial disputes is an effective way to give full play to the role of social strength in mediating commercial disputes. Social participation in the mediation may be conducted prior to the litigation and prior to the court trial or during the court trial proceeding too. The specially invited mediator may preside over the mediation work, or offer assistance to the mediation work presided over by the court. They may persuade the parties concerned by legal reasoning and analysis and direct them by what is right and beneficial. Incessant innovations shall be made to the mediation approaches so as to propel the parties concerned to independently make their own choice after balancing the interests, and finally realize the aims of settling disputes and concluding cases.
3. The social participation in mediation shall be aimed at solving disputes rapidly and effectively, promoting social harmony, saving judicial resources and reducing the litigation costs of the parties concerned. We shall regulate the procedures for social participation in mediation so as to guarantee the rights of the parties concerned and propel the parties concerned to reach reconciliation on the lawful and voluntary basis, and give full play to the advantageous role of social participation in mediation.
II. To encourage, direct and support the parties concerned to choose social strength to mediate the commercial disputes
4. As to various cases of commercial disputes which may be settled through mediation, the people's court shall mediate them. It shall, on the basis of respecting the choice made by the parties concerned, encourage, direct and support them to choose a specially invited mediator to mediate the disputes, give full play to his advantageous role in mediating and settling the disputes in his industry, specialty or region, and try to increase the successful mediation rate.
5. The work mode of social participation in the mediation of commercial disputes is widely applicable. It may be adopted in all commercial disputes suitable for mediation. For a case of commercial disputes with clear legal relations and simple facts, which bears certain industrial characteristics or is highly specialized, a priority may be first given to the mediation through the work mode of social participation in mediation.
III. To clarify the conditions for the selection of specially invited mediators, regulate the mediation procedures, tighten the mediation disciplines and ensure the lawful and smooth operation of the work mode of social participation in mediation
6. A court may hire lawfully established public institutions and enterprises, professional associations and other social groups or other organizations and qualified individuals to be specially invited mediators. The courts at all levels shall have channels to communicate with and systems to contact the relevant industrial associations. If an enterprise, public institution, professional association and any other social group or organization is selected or designated to be a specially invited mediator to assist in the mediation, it shall assign 1 or 2 staff members to act as representatives of the specially invited mediator to carry out the mediation work. An individual who acts as a specially invited mediator or representative of a specially invited mediator shall have the professional knowledge or social experience necessary to facilitate the mediation, but no person who has ever been subjected to any criminal punishment or has ever been dismissed from public employment may act as a specially invited mediator or representative of a specially invited mediator.
7. If the people's court hires a specially invited mediator, it shall prepare a directory of specially invited mediators, bearing the organization or individual names, professional background, field good at and other basic information of the specially invited mediators so as to make it convenient for the parties concerned to make a choice.
8. No specially invited mediator who has interest conflict with any party concerned to a case shall participate in the mediation of the case. The relevant party concerned may apply to the people's court for the mediator's disqualification.
9. Where a party lodges a lawsuit to the people's court due to commercial disputes, the people's court may ask the plaintiff if it (he) consents to the mediation by a specially invited mediator. If the plaintiff consents to it, the people's court may temporarily postpone accepting the case, and inform the parties concerned that they may choose a specially invited mediator for mediation. If the plaintiff does not consent to the mediation by a specially invited mediator or no agreement is reached after mediation, the people's court shall timely accept the case. After a case of commercial disputes is accepted, the specially invited mediator selected by the parties concerned or designated by the people's court may independently conduct the mediation work or assist the people's court in the mediation work. Under a special circumstance, the people's court may, upon consent of the parties concerned, invite organizations or individuals outside the directory of specially invited mediators to participate in the mediation if it is helpful to facilitate the mediation.
10. To preside over the mediation work or offer assistance to the mediation work presided over by the people's court, a specially invited mediator shall abide by the judicial disciplines and keep the judicial secrets. The mediator shall not divulge any business information or other information to which he (it) has access during the mediation process, which can not be disclosed, nor shall he (it) utilize the information to which he (it) has access during the mediation process without consent of the parties concerned.
11. Where a specially invited mediator presides over the mediation work, the people's court shall transfer to the mediator the original text or photocopy of the case files, and do a good job in the registration and filing and have both the deliverer and mediator sign the receipt. The specially invited mediator may, by telephone, fax, email and other simple means, notify the parties concerned to come to his office, the tribunal or other proper place to receive the mediation service. The mediator may mediate the commercial disputes between the parties concerned by appealing to affection, reason, law, the parties' psychology and commercial rules, but shall not force the parties to accept the mediation.
IV. The people's court shall strengthen the procedural administration of the commercial cases mediated by specially invited mediators
12. The people's court shall strengthen the administration of the cases, of which the mediations are presided over by specially invited mediators, and timely know and grasp the progress of mediations. The mediation shall be conducted if it works and a judgment shall be made if it should be made. The people's court shall avoid long pending cases and prevent one party from damaging the other party's legitimate rights and interests by making use of the mediation, and shall timely confirm or handle the mediation results.
13. A specially invited mediator shall, within 15 days, finish the mediation presided over by him. If both parties apply for extending the mediation time and get the approval of the people's court, the time limit for the mediation may be properly extended. The time period during which the specially invited mediator presides over the mediation shall not be included in the time period for the trial of the case.
14. If an agreement is reached after mediation by the specially invited mediator and the parties concerned ask the people's court to issue a mediation document according to the mediation agreement, the people's court shall examine the mediation agreement. If the mediation agreement meets the statutory conditions, the people's court shall confirm it and issue a mediation document. If an agreement is reached after mediation by the specially invited mediator and the plaintiff applies to the people's court for withdrawing the lawsuit, the people's court shall make a ruling on whether to approve the withdrawal of the case. If no agreement is reached after the mediation by the specially invited mediator, the mediator shall terminate the mediation, and hand the case files back to the people's court within 3 days.
15. If, after the people's court accepts a case, an agreement is reached after the mediation by the specially invited mediator, the people's court shall issue a mediation document or approve the withdrawal of the case and charge the litigation fee under the fee criteria as prescribed in the Measures for Paying Litigation Fees.
16. The people's court may give work allowance to specially invited mediators in light of the actual circumstance, if possible. Each people's court shall strive to obtain the support of the local Party Commission and government to the social participation in the mediation of commercial disputes, and make active coordination so as to obtain from the local treasury an exclusive allowance fund for specially invited mediators.
17. Each people's court shall strengthen the training of specially invited mediators regarding the professional ethics, mediation disciplines, litigation procedures, etc. It shall establish a system of annual evaluation of specially invited mediators. It shall commend those specially invited mediators or specially invited mediation entities (representatives) who have made outstanding achievements. It shall intensify the publicity of outstanding specially invited mediators or specially invited mediation entities (representatives) so as to make the general public know the work conducted by the specially invited mediators, and direct more parties concerned to the cases of commercial disputes to independently choose specially invited mediators to mediate the disputes.