Opinions of the Supreme People's Court and the Ministry of Justice on Implementing the Pilot Program of Lawyer Mediation

 2018-05-16  58


Opinions of the Supreme People's Court and the Ministry of Justice on Implementing the Pilot Program of Lawyer Mediation


· Document Number:No. 105 [2017] of the Ministry of Justice

· Area of Law: Lawyers

· Level of Authority: Documents of Judicial Interpretation Nature

· Date issued:09-30-2017

· Effective Date:09-30-2017

· Status: Effective

· Issuing Authority: Supreme People's Court Ministry of Justice

 

Opinions of the Supreme People's Court and the Ministry of Justice on Implementing the Pilot Program of Lawyer Mediation
(No. 105 [2017] of the Ministry of Justice)
The higher people's courts and departments (bureaus) of justice of provinces (municipalities directly under the Central Government) including Beijing, Heilongjiang, Shanghai, Zhejiang, Anhui, Fujian, Shandong, Hubei, Hunan, Guangdong, and Sichuan:
In order to implement the Decision of the CPC Central Committee on Several Major Issues concerning Comprehensively Promoting the Law-based Governance, the Opinions of the General Office of the CPC Central Committee and the General Office of the State Council on Improving the Mechanism of Diversified Resolution of Conflicts and Disputes, the Opinions of the General Office of the CPC Central Committee and the General Office of the State Council on Deepening the Reform of the Lawyer System, and the Opinions of the Supreme People's Court on People's Courts' Further Deepening the Reform of Diversified Dispute Resolution Mechanism, give full play to the professional advantages, career advantages, and practice advantages of lawyers in the prevention and resolution of conflicts and disputes, improve the lawyer mediation system, and promote the formation of a diversified dispute resolution system with Chinese characteristics, the following opinions on carrying out the pilot program of lawyer mediation are hereby raised:
I. General Requirements
1. Guiding ideology. We shall comprehensively implement the spirit of the 18th CPC National Congress and the Third, Fourth, Fifth, and Sixth Plenary Sessions of the 18th CPC Central Committee, carry out in depth the spirit of a series of important speeches and important instructions on the work of lawyers given by General Secretary Xi Jinping, center on the overall objective of advancing law-based governance, deepen the reform of the mechanism of diversified resolution of disputes, establish a sound work mechanism for connection of litigation and mediation, give full play to the functional roles of lawyers, establish work patterns of lawyer mediation, innovate on ways and methods of lawyer mediation, effectively resolve various conflicts and disputes, safeguard the lawful rights and interests of the parties, promote social fairness and justice, and sustain social harmony and stability.
2. General principles.
Adhering to mediation according to the law. The work of lawyer mediation shall be carried out according to the law, no prohibitive provisions of laws and regulations may be violated, and no national interests, public interests, and lawful rights and interests of the parties and other interested parties may be harmed.
Adhering to equality and free will. In carrying out the mediation work, lawyers shall fully respect the will of all parties, respect the parties' right to select procedures for resolution of disputes, and safeguard their litigation rights.
Adhering to neutral mediation. In the mediation, lawyers shall maintain neutrality and may not have any statements and actions that are partial to any party, so as to maintain the objectivity, impartiality, and acceptability of the mediation results.
Adhering to confidentiality in the mediation. Except unanimous consent of the parties or as otherwise prescribed by law, the mediation matters, mediation process, and content of the mediation agreement may not be disclosed and personal privacy or trade secrets of the parties may not be divulged.
Adhering to convenience and efficiency. When carrying out the mediation by applying specialized knowledge, lawyers shall attach importance to work efficiency, flexibly determine the mediation ways and methods, and procedures in light of the actual circumstances of disputes, and establish a convenient and efficient work mechanism.
Adhering to effective connection. The organic linkage among lawyer mediation, administrative mediation, industrial mediation, commercial mediation, and litigation mediation shall be strengthened, their respective characteristics and advantages shall be brought into full play, and a dispute resolution mechanism with procedural linkage, complementary advantages, and collaboration and cooperation shall be formed.
II. Establishing Work Patterns of Lawyer Mediation
The term “lawyer mediation” refers to an activity where a lawyer, lawfully-formed lawyer mediation office, or lawyer mediation center presides over the mediation as an independent third party and assists all parties to disputes in reaching an agreement and resolving disputes through voluntary negotiation.
3. The lawyer mediation offices shall be set up in the people's courts. The people's courts at various levels in pilot areas shall combine lawyer mediation and building of litigation service centers, lawyer mediation offices shall be set up in litigation service centers, centers for connection of litigation and mediation, or people's tribunals where conditions are met, and necessary work facilities and work places shall be allocated.
4. The lawyer mediation offices shall be set up in public legal service centers (stations). The public legal service centers at the county level and the public legal service stations at the township level in pilot areas shall set up special lawyer mediation offices and the public legal service centers (stations) shall dispatch lawyer mediators to provide public welfare mediation services.
5. The lawyer mediation centers shall be set up in bar associations. The bar associations at the provincial or districted city level in pilot areas shall set up lawyer mediation centers. Under the guidance of bar associations, the lawyer mediation centers shall organize lawyers to serve as mediators, accept applications of the parties or cases transferred by the people's courts, and participate in resolution of conflicts and mediation of disputes.
6. The mediation offices shall be set up by the law firms. The law firms where conditions permit shall be encouraged and supported in setting up mediation offices and forming mediation teams. Such law firms may accept applications of the parties for mediation as a lawyering business and handle mediation cases transferred by the people's courts and administrative organs.
 III. Establishing a Sound Work Mechanism of Lawyer Mediation
7. The scope of lawyer mediation cases shall be specified. The lawyer mediation may accept various civil and commercial disputes, including civil disputes incidental to criminal cases, but excluding cases not subject to mediation such as confirmation of marital and personal relations.
8. A sound system of lawyer mediation qualifications shall be established. The judicial administrative organs and bar associations at the provincial level in pilot areas shall, jointly with the people's courts, study and develop administrative measures and specify the qualifications of law firms and lawyer mediators undertaking lawyer mediation, including the staff size, the number of years of practice, the number of cases handled, and the credit conditions. The judicial administrative organs and bar associations shall, jointly with the people's courts, establish a register of law firms and lawyer mediators undertaking lawyer mediation.
9. The work procedures of lawyer mediation shall be standardized. The people's courts, public legal service centers (stations), bar associations, and law firms shall provide the parties with the register of law firms and lawyer mediators undertaking lawyer mediation, disclose information on the register through notice boards, official websites, and other platforms, so as to facilitate the parties' inquiry and selection.
When law firms and lawyers accept the relevant entrustment as agents or participate in the resolution of conflicts and disputes, they shall notify the parties of their preference to mediation or other non-litigation methods for resolution of disputes.
In general, one mediator presides over the lawyer mediation. For major, difficult, and complex cases or cases where the parties require joint mediation of two or more mediators, two or more mediators may participate in the mediation and the lawyer mediation office or lawyer mediation center may designate one mediator to preside over the mediation. Where a party has justifiable reasons, he or she may apply for changing the lawyer mediator. The lawyer mediator shall carry out the mediation under the mediation procedure. The term of lawyer mediation is 30 days. This limit shall not apply where both parties consent to the extension of the term of mediation. Where an agreement is reached upon mediation, a mediation agreement shall be issued; if a mediation agreement fails to be reached at the expiration of the time limit and the parties disagree to continue the mediation, the mediation shall be terminated.
When the lawyer mediator organizes mediation, he or she shall record the matter under dispute and the mediation progress in writing and such record shall be confirmed with signatures of both parties. The lawyer mediation office or lawyer mediation center shall establish complete electronic and paper mediation files for reference by the parties. Where the parties fail to reach a mediation agreement at the conclusion of the mediation procedure, after obtaining the approval of all parties, the lawyer mediator may record undisputed facts in the mediation process in writing and such record shall be confirmed with signatures of both parties. In the legal proceedings, except facts involving national interests, public interests, and lawful rights and interests of other persons, it is unnecessary for the parties to produce evidence to prove the undisputed facts that have been confirmed in the mediation.
Where the lawyer mediation organizations set up in public legal service centers (stations), bar associations, and law firms accept applications filed by the parties for direct mediation and preside over the mediation of disputes, they shall carry out the mediation be reference to the aforesaid procedure.
10. The immediate performance of mediation agreements shall be encouraged. Where, upon mediation by the lawyer mediation office or the lawyer mediation center, the parties reach a mediation agreement, the lawyer mediator shall encourage and guide the parties in performing the agreement in a timely manner. Where any party refuses or delays the performance without any justifiable reasons, the relevant mediation and enforcement fees shall be fully or partially borne by the party that has failed to perform the agreement.
11. The mechanism for connection between mediation agreements and payment orders shall be improved. Where there is any content of monetary payment or payment of negotiable securities in the settlement agreement or mediation agreement reached upon lawyer mediation, and the creditor files an application for a payment order with the basic-level people's court with jurisdiction in accordance with the provisions of the Civil Procedure Law and its judicial interpretations, the people's court shall issue a payment order according to the law; and if the debtor fails to raise a written objection within the statutory time limit or fails to perform the payment order within the prescribed time limit, the people's court may enforce the payment order.
12. The judicial confirmation procedure for mediation agreements shall be improved. For an agreement with the nature of a civil contract reached upon mediation by the lawyer mediation office or the lawyer mediation center, the parties may file an application with the basic-level people's court or the people's tribunal at the place where the lawyer mediation office or the lawyer mediation center is located for confirming the effect of the agreement, and the people's court shall confirm the effect of the mediation agreement according to the law.
13. The system for withdrawal of lawyer mediators shall be established. Where a lawyer mediator falls under any of the following circumstances, the parties have the right to apply for withdrawal of such lawyer mediator: he or she is the close relative of one party or the agent thereof; he or she is an interested party to disputes; and he or she has any other relation with the parties to disputes or the agents thereof, which may affect the impartial mediation. Where a lawyer mediator falls under any of the aforesaid circumstances and a party applies for withdrawal of such lawyer mediator, the lawyer mediator shall withdraw. If no party requires withdrawal of the lawyer mediator, the lawyer mediator shall notify the parties in a timely manner and voluntarily withdraw. Where the parties unanimously consent to the continuation of the mediation, the lawyer mediator may continue to preside over the mediation.
The lawyer mediator may not accept the entrustment of any party for the matter under dispute or any other dispute closely related to such matter under dispute, act as the agent of the party in arbitration or litigation, or serve as the people's juror, arbitrator, witness, appraiser, or translator in the subsequent resolution procedure for the matter under dispute.
14. A scientific fund guarantee mechanism shall be established. Where the mediation office set up in a law firm accepts the parties' application for direct mediation of disputes, mediation fees may be collected from both parties according to the principle of compensation and low price, except that one party consents to bear all mediation fees. The standards and methods for collection of mediation fees shall be determined by all pilot areas in light of the actual circumstances and be submitted to the relevant department for approval and recordation.
Where the lawyer mediation office set up in the public legal service center (station) and the lawyer mediation center set up in the bar association accept the parties' application for direct mediation of disputes, the judicial administrative organ or bar association shall arrange the expenses by means of government procurement of services. The problem of expenses for lawyer mediators' mediation of legal aid cases shall be solved by legal aid institutions in the channel of government procurement of services.
Where a lawyer mediation office is set up in the people's court, the people's court shall, according to the amount, quality, and social effects of mediation of disputes, arrange the mediation expenses in the channel of government procurement of services and incorporate such mediation expenses into the special budgets of the people's court. The specific methods shall be determined by all pilot areas in light of the actual circumstances.
15. The leverage of litigation expenses shall be brought into play. When the parties reach a settlement agreement and apply for withdrawing the lawsuit, the people's court shall exempt the parties from paying the litigation fees. Where, in litigation, the parties reach a mediation agreement upon mediation, the people's court may collect the litigation fees by half. Where one party fails to participate in mediation without any justifiable reasons or has obvious malice, causing mediation failure, the people's court may, in light of the specific circumstances, uphold the claim for reasonable lawyers' fees and other justified claims raised by the non-fault party.
IV. Strengthening Work Guarantee
16. The organization and leadership shall be strengthened. The people's courts, judicial administrative organs, and bar associations in pilot areas shall attach great importance to the reform, strengthen institutional building and work coordination, and effectively promote the smooth progress of the pilot program. They shall, within the framework of the lawyer mediation system, innovate on the manners and methods of working, develop implementation opinions that are consistent with characteristics of the areas, constantly summarize experience, positively make explorations, and popularize and provide replicable and referential systems and experience across the country.
17. The participation of lawyers shall be positively guided. The people's courts, judicial administrative organs, and bar associations in pilot areas shall positively guide lawyers in participating in the diversified resolution of conflicts and disputes, encourage and recommend lawyers to serve as mediators in people's mediation organizations, arbitral bodies, commercial mediation organizations, and industrial mediation organizations, encourage lawyers to innovate on manners of mediation by virtue of modern science and technology measures, positively participate in the pilot program of online mediation, urge lawyers to voluntarily take social responsibility and reflect social value, fully mobilize lawyers' enthusiasm in engaging in mediation, and realize the sustainable development of lawyer mediation.
18. The team management shall be strengthened. The training in such aspects as professional ethics, practice disciplines, and mediation skills of lawyer mediators shall be strengthened, high-level mediation lawyer teams shall be built, and the quality of mediation cases shall be guaranteed. Explorations shall be made to build an appraisal and incentive mechanism for lawyers participating in public welfare mediation. The people's courts, judicial administrative organs, and bar associations shall give material or honorary rewards to lawyer mediation offices, lawyer mediation centers (organizations), and lawyer mediators with outstanding performance.
19. The accountability shall be strengthened. Where any lawyer mediator engages in mediation in violation of law, violates the withdrawal system, divulges the parties' personal privacy or secrecy, or commits any other violation of law or violation of lawyers' professional ethics, he or she shall be restricted in engaging in mediation business within a prescribed time limit or be prohibited from engaging in mediation business, or the bar association shall take disciplinary action against the lawyer or the judicial administrative organ shall impose an administrative penalty on the lawyer. The bar association shall develop the detailed rules for implementation and report them to the local judicial administrative organ for recordation.
20. The publicity shall be strengthened. The people's courts, judicial administrative organs, and bar associations in pilot areas shall make great efforts to publicize the roles and advantages of the lawyer mediation system, encourage citizens, legal persons, and other organizations to give preference to lawyer mediation for fast and effective resolution of disputes, and create favorable practical environment for lawyers in carrying out mediation.
21. The guidance and supervision shall be strengthened. The Supreme People's Court and the Ministry of Justice shall guide and urge the pilot program, conscientiously study prominent problems in the pilot program, comprehensively assess the actual effects of the pilot program, summarize the successful experience of all areas in the reform of the mechanism of diversified resolution of disputes, and promote the institutionalization and legalization of achievements in the reform and practice.
22. The pilot program shall be carried out in 11 provinces (municipalities directly under the Central Government), including Beijing, Heilongjiang, Shanghai, Zhejiang, Anhui, Fujian, Shandong, Hubei, Hunan, Guangdong, and Sichuan. The pilot provinces (municipalities directly under the Central Government) may carry out the pilot program in the whole provinces (municipalities directly under the Central Government) or some selected areas, and the pilot schemes shall be submitted to the Supreme People's Court and the Ministry of Justice for recordation.
Supreme People's Court
Ministry of Justice
September 30, 2017