A Brief Discussion on Lawyer Mediation after Implementation of Civil Code

Introduction :The "Civil Code", promulgated on May 28, 2020 and implemented on January 1, 2021, has triggered a new round of re-understanding of civil law in the society. At present, our country is in the critical period of social and economic transformation, reform into a deep-water zone, and achieving a well-off society in an all-round way. It is important to deal with various social contradictions and disputes after the implementation of the "Civil Code", especially when the prevention and control of COVID-19 epidemic is normalized. If these disputes are not well handled, they will inevitably become major domestic problems affecting social harmony and stability in the face of the global economic downturn and the severe international situation. In addition to normal arbitration and litigation channels, the resolution of these disputes urgently needs to be prematurely resolved through the social diversified dispute resolution non-litigation mechanism. This paper only discusses the lawyer's mediation in the mechanism of resolving social contradictions and disputes after the "Civil Code" was promulgated.

 

Keywords: Contradictions and Disputes | Pluralistic Resolution | Lawyer's Mediation

 

It is a reform task put forward at the Fourth Plenary Session of the 18th CPC Central Committee to "improve the mechanisms of safeguarding rights and resolving disputes according to the law, establish and improve the early warning mechanisms, interest expression mechanisms, consultation and communication mechanisms, and relief and relief mechanisms, and unblock the legal channels for coordinating the interests of the masses and safeguarding their rights and interests", and the Fifth Plenary Session of the 18th CPC Central Committee also emphasized the need to "strengthen and innovate social governance, promote the refinement of social governance, and build a social governance structure featuring co-construction and sharing by the whole people". This is an inevitable requirement for improving the conflict and dispute resolution mechanism according to the law, unblocking channels for the masses to express their appeals, and promoting social fairness and justice. It is also an important content of innovating social governance and deepening the construction of peace and security.

 

 

I. Main Issues Facing Social Contradictions and Disputes

1. Current Situation of Dispute Mediation

At present, our country's economy and society is in the period of transformation with various social contradictions emerging one after another. Due to the lack of comprehensive and systematic research and insufficient understanding of the types, characteristics and laws of social contradictions and disputes, the existing dispute resolution mechanism can no longer meet the needs of social development. At the present stage, the main dilemmas we are confronted with include: the complexity and diversity of social contradictions, the insufficient position of the non-governmental mediation mechanism, the insufficient function of the non-litigation dispute resolution mechanism dominated by non-governmental mediation, the imperfect function of the administrative mediation mechanism, the weak functions of non-litigation mediation, the single methods and means of dispute resolution, the weak practicability, the increasingly obvious limitations, the lack of effective connection between various dispute resolution mechanisms, the insufficient legal enforcement, and the lack of clear legislation on the non-litigation dispute resolution mechanism, all of which have affected the normal and stable production and living order of our country.

2. Characteristics of social contradictions and disputes

With the rapid development of the socialist market economy, the reform of the economic system is facing the deep-water area, and the interest pattern of all social strata is changing constantly. Since 2020, the outbreak and prevention and control of COVID-19 have become normal. With the arrival of the Civil Code era, various conflicts and disputes will also be in an outbreak period, and the characteristics of disputes are diversified, the types of disputes are diversified, and the interests are complex.

The parties involved in disputes are diversified. Before the COVID-19, most of the social contradictions and disputes occurred between independent individuals or enterprises. With the outbreak and prevention and control of COVID-19, the scope of the main body is expanding, including vertical and horizontal enterprises and government departments. Moreover, after the Civil Code was promulgated and implemented, the lack of in-depth study and understanding of the new provisions of the law will inevitably affect the comprehensiveness of the civil subjects' cognition of the new law, which is universal and collective, and mostly related to the new hot spots after the Civil Code was implemented.

The types of disputes are diversified. Different from the past, due to the prevention and control of COVID-19 at the beginning of the year, there have been a large number of disputes over the performance of contracts, property leasing, tourism and catering services, and the promulgation of the new provisions of the Civil Code will also cause legal confusion about the personal and property aspects of family marriage, contract performance, property leasing, labor relations and other hidden risks and disputes in a certain period of time.

The interests of the parties involved are complex. The outbreak of COVID-19 has an impact on the original social production and living order. Most of the interests of the parties involved in the prevention and control of COVID-19. The implementation of the Civil Code cannot effectively resolve these extensive, diverse and deep-rooted contradictions and demands. Once these complex interests of the parties can not be handled properly, it is easy to cause serious consequences such as intensification of conflicts and disputes.

 

II. The Approaches to Non-litigation Resolution of Social Conflicts and Disputes

How to resolve the normalization of epidemic prevention and control and various social conflicts and disputes after the implementation of the Civil Code is a social problem that cannot be ignored.

1. Establishing a Sound Early Warning Mechanism for Dispute Resolution

Organizations at all levels shall regularly sort out and summarize various types of social conflicts and disputes and make accurate analysis and judgment thereof. At the same time, corresponding plans shall be formulated to pay attention to the prevention of disputes with a certain tendency and timely put forward advices or suggestions on foreseeable, instructive and effective measures to prevent and resolve such conflicts and disputes.

2. Combining publicity with persuasion

Efforts should be made to actively strengthen the publicity of the relevant policies on the normalization of epidemic prevention and control and the Civil Code in accordance with the law through modern media such as radio, television, short message, WeChat and various self-media, intensify the publicity of law, enhance the awareness of the rule of law of the parties concerned, compile and issue the graphic and text materials of the relevant laws and regulations, actively answer questions and answer questions of the parties concerned, and prevent, troubleshoot and guide various claims of the parties concerned from the source of disputes.

3. Improving the pattern of major dispute resolution mediation

Efforts should be made to establish and improve the diversified linkage mechanism for dispute resolution, and take into account the types of conflicts and disputes, the difficulty of which, social impact and other different circumstances. With regard to some conflicts and disputes with complex causes, covering a wide range and with great difficulty, we should put non-litigation resolution procedure in the first place, based on the three mediation organizations of people's mediation, administrative mediation and judicial mediation, adhere to the effective connection of coordinating the mediation by the Public Procuratorates and Courts, further promote the complementary functions of diversified resolution, and promote the organic connection of diversified dispute resolution methods such as reconciliation, mediation, arbitration, administrative adjudication, reconsideration and litigation, so as to promote the formation of joint forces to resolve disputes through multiple channels, so as to improve the efficiency and success rate of dispute mediation.

We should, in light of the normalization of epidemic prevention and control and the publicity of the Civil Code, study and judge various unstable factors and signs of disputes that may arise in the region at the grassroots level, give full play to the role of traditional people's mediation as the "first line of defense", and strive to resolve social conflicts and disputes in the initial state by classifying them and targeting them. We should not adopt a uniform approach in all mediations, and should pay attention to listening to the reasonable appeals of groups in difficulties. For all mediations, we should make comprehensive use of ethical and moral means, policies and laws, and other compliance means, and try to prevent disputes from further escalating and contradictions intensifying through early consultation, reconciliation and other means.

4. Integrating social forces and strengthening social participation

We should broaden the ways to resolve social conflicts and disputes, and give play to the complementary role of government hotlines, sub-districts and communities, trade unions and departments in charge of letters and visits in the conflict and dispute resolution system. We should make full use of the unique professional advantages of trade associations and the position advantages of organizations at all levels, accept and handle disputes and complaints in a timely manner, establish an organic connection among sub-districts and communities, industries, petition letters and visits as well as non-litigation and other dispute resolution channels, reduce the consumption of procedures, time and energy through early settlement, and introduce the conflicts and disputes between the parties concerned and between the enterprises and the industry and the market into legal channels for lawful settlement, so as to promote an early and harmonious settlement of conflicts and disputes.

5. Paying attention to the judicial confirmation system

This is a very important system, and it is also a system that the parties concerned can easily agree with and accept. Various mediation organizations at all levels shall earnestly study and, in accordance with the provisions of the People's Mediation Law and other relevant policies and regulations, adopt flexible and diversified legal and compliant ways and means, and correctly guide the parties concerned to seek common ground and resolve their differences in a rational manner so as to reach a consensus. Where an agreement can be reached through mediation, a mediation agreement shall be prepared in a timely manner in accordance with regulations, and both parties shall be urged to perform the agreement. For contradictions and disputes in which the parties concerned succeed in mediation but cannot be performed in a timely manner, upon the application of the parties concerned and the review of the people's court, a ruling or civil mediation agreement shall be made to confirm the validity of the mediation agreement, which endows the parties concerned with compulsory execution; the mediation of the cases which cannot be mediated according to explicit provisions of the law, the parties concerned are unwilling to mediate or the mediation fails shall be terminated, and the parties concerned shall be guided and informed that they may resolve the disputes through arbitration, litigation and other legal means.

6. Providing quality and efficient public legal services

We should make overall arrangements for full-time lawyers, government lawyers and legal aid lawyers to participate in the resolution of common and mass contradictions and disputes, promote pilot programs such as lawyers' participation in reception of petitions and lawyers' mediation, and set up special legal service channels, extensively carry out public welfare services for lawyers, and actively participate in the resolution of various social contradictions and disputes. At the same time, we should increase legal aid to groups in difficulties, and give full play to the industry advantage and professional role of lawyers in mediation and settlement of contradictions and disputes.

"No litigation" is a beautiful vision of great unity throughout the world. As for various social contradictions and disputes such as civil and commercial matters, as long as there is no litigation impossible, no fear of litigation, and non-litigation mediation is the priority, as long as the source is blocked, coordinated linkage, and organic connection is blocked, the efficient, convenient, and diversified dispute resolution mechanism will be sure to be improved.

 

III. Lawyer Mediation in the Process of Non-Litigation Resolution

Lawyers should earnestly fulfill their social responsibilities, participate in the diversified mediation of civil and commercial matters and other social contradictions and disputes, and play their due status and role:

1. Policy and Legal Basis of Lawyer Mediation

Lawyers' legal services are within the scope of the public legal service system of our country. Lawyers' participation in the resolution of social contradictions and disputes is advocated by the state, and there are laws to follow for pre-litigation mediation:

"Establishing a lawyer mediator system" was proposed for the first time by the Supreme People's Court on April 10, 2012. It can mobilize lawyers to give full play to their professional, professional, and practical advantages and to actively participate in various dispute resolution mechanisms such as people's mediation, administrative mediation, industry mediation, commercial mediation, and litigation mediation, which is conducive to timely resolving social contradictions and disputes at the budding stage and maintaining social harmony and stability.

It is a political task put forward at the Fourth Plenary Session of the 18th CPC Central Committee to "build a complete legal service system and promote the construction of a public legal service system covering both urban and rural residents"; the 13th Five-year Plan for Promoting the Equalization of Basic Public Services issued by the State Council has also made deployments for promoting the construction of a public legal service system. In January 2014, the Ministry of Justice made a plan for the construction of a public legal service system. On this basis, the Ministry of Justice required, in August 2017, the establishment of public legal service centers and public legal service workstations focused on counties (cities and districts) and towns (sub-districts) where lawyers can provide mediation services.

On December 6, 2015, the General Office of the CPC Central Committee and the General Office of the State Council jointly issued a document to establish "a diversified dispute resolution mechanism covering people's mediation, administrative mediation, judicial mediation, industry mediation, commercial mediation, arbitration, administrative reconsideration and administrative adjudication, consultation, neutral assessment and third-party mediation" for social contradictions and disputes.

On June 28, 2016, the Supreme People's Court issued a guideline to "promote the development of the lawyer mediation system" and to work together with the Ministry of Justice to launch a comprehensive plan for the pilot program of lawyer mediation in October 2017. For the first time, it is clarified that "lawyer mediation" refers to an activity in which lawyers, legally established Lawyer mediation offices or lawyer mediation centers preside over mediation proceedings as a neutral third party to assist disputing parties in reaching dispute resolution agreements voluntarily.

The lawyer mediation system here is deepest in nature. "Lawyer mediation" is completely different from lawyers' "litigation mediation" in terms of status and functions. Lawyers participate in litigation mediation as attorneys, presided over by people's courts at various levels. The core of lawyer mediation is that lawyers have a neutral status. At this point, lawyers no longer act as attorneys, but maintain a neutral third party identity. He balances the interests of both parties and guides both parties to reach a dispute agreement on the basis of equal negotiation.

On March 9, 2018, in his Report on the Work of the Supreme People's Court at the First Session of the 13th National People's Congress, President Zhou Qiang pointed out that efforts should be made to work together with the Ministry of Justice to launch a pilot program of lawyer mediation and improve the lawyer mediation system. On October 15, 2019, President Zhou Qiang emphasized at the National Trial and Enforcement Promotion Meeting that efforts should be made to continuously enhance dispute resolution and litigation services to achieve information sharing among mediation, arbitration, notarization and litigation, so that disputes can be efficiently resolved through optimal combination of dispute resolution.

On January 15, 2020, under the authorization of the Standing Committee of the 13th National People's Congress, the Supreme People's Court issued a document stipulating "optimizing judicial confirmation procedures" and "where a civil mediation agreement is reached under the mediation of a people's mediation committee, specially invited mediation organization or specially invited mediator, both parties may jointly apply to a people's court for judicial confirmation within 30 days from the effective date of the mediation agreement". The specially invited mediators here include lawyers. The purpose of the mediation is to further broaden dispute resolution channels, improve dispute resolution methods, enhance judicial efficiency, protect the legitimate litigation rights and interests of the parties, and meet the people's demands for efficient, convenient and diversified dispute resolution.

On March 22, 2020, the Ministry of Justice issued a document reiterating its requirement to "promote the pilot program of lawyers' participation in petition reception and lawyer mediation, and give play to the role of village (resident) counsels in mediating grassroots conflicts and disputes."

On April 20, 2020, the Supreme People's Court explicitly required courts at all levels to fully understand the essential characteristics of epidemic-related civil disputes, "put the non-litigation dispute resolution mechanism at the top" and insist on giving priority to mediation, "actively participate in litigation source governance", "guide the parties to reconcile and negotiate, share risks and overcome difficulties, and effectively resolve conflicts in the bud and grassroots."

2. Advantages of Lawyer Mediation

As a new model for promotion of diversified non-litigation dispute resolution, for the normalization of epidemic prevention and control as well as various social conflicts and disputes after the effectiveness of the Civil Code, lawyer mediation may make use of professional influence and its own affinity to enhance the effectiveness of diversified dispute resolution, provide the parties concerned with legal services convenient and beneficial to the people, and give play to the irreplaceable role of other non-litigation mediation in prevention and resolution.

(1) Online and offline law dissemination. It is imperative to provide "zero distance" legal services for the parties concerned, compile and release a series of legal articles on epidemic prevention and control and the promulgation and implementation of Civil Code, set up various legal service groups to give lectures in neighborhoods and communities, distribute various legal brochures on COVID-19 epidemic prevention and control, family marriage, contract performance and other aspects that the public and enterprises pay great attention to, and publicize and prevent the same by focusing on the focus of attention of the parties concerned and the new hot spots of Civil Code and other prominent issues in a simple and simple way.

(2) Effectiveness of lawyer mediation. Litigation takes time and energy, not only the payment of litigation costs, but also a long time to wait. With respect to family marriage, labor disputes, tort, small subject matter and clear facts, as an important power to resolve disputes in diversified social ways, lawyers intervene in pre-litigation non-litigation mediation in advance. They can work together with the arbitration tribunal and the court to make full use of their respective advantages and give play to the respective advantages of justice and law to quickly guide and resolve the conflicts between both parties concerned, which will finally conclude the dispute, which will reduce the litigation burden and economic pressure of the parties concerned and greatly save litigation and time costs of the parties concerned.

(3) Advantages of Lawyer Mediation. Lawyer mediation can give full play to lawyers' professional advantages, but also be more close to and beneficial to the people. It can enhance the sense of trust of parties concerned and lawyers' practical experience, make lawyers able to predict the outcome of a case to a certain extent and increase the credibility of the mediation result. With the increasing number of litigation cases accepted by the courts, lawyer mediation can give full play to the autonomy of parties concerned, and provide them with an optimal dispute resolution option other than litigation and arbitration. It can meet the needs of different parties and have a higher value orientation. It is an important supplement to the social dispute resolution mechanism for non-litigation mediation.

(4) Accurately resolve the common contradictions and disputesIn addition to carrying out normal services, lawyers may, in light of online and offline services, set up lawyer teams relying on industry advantages, take the initiative to go to enterprises and technology parks to give lectures, conduct public publicity on epidemic prevention and control and Civil Code, analyze and accurately interpret potential and common risks and conflicts and disputes of enterprises, provide specific answers to substantive and procedural questions concerned by the parties, and give reference legal advice or solutions in accordance with the law, so as to help enterprises effectively avoid legal risks and prevent the consequences of the disputes from further expanding.

At the same time, lawyers may make use of their advantages as legal counsel of enterprises and public institutions to reasonably plan employment, wages and social insurance and other hot issues concerned by enterprises and their employees, assist enterprises in carrying out compliance management, guide the parties to effectively communicate, and reach consensus, so as to prevent, reduce and settle labor disputes, avoid intensification of conflicts between enterprises and their employees, and resolve possible mass consequences in advance to an intangible extent.

3. Several Modes of Work for Lawyer Mediation

As a new method of providing legal services, the lawyer mediation system, as stated above, is clearly authorized by laws and regulations and can be used in the following ways:

The first mode is to provide mediation services in a lawyer mediation room set up in a court. That is, specialized lawyer mediation offices shall be set up at the court litigation service center, litigation-mediation connecting center or qualified people's tribunal to allow qualified lawyer mediators to mediate according to the law the cases transferred as entrusted by the court, with the consent of both parties concerned.

The second mode is to provide mediation services in a lawyer mediation room set up in a public legal service center. That is to say, specialized lawyer mediation offices should be set up in counties (townships) public legal service centers (stations) in pilot regions. This model has three advantages: first, it is grassroots, whereby lawyers provide "going to the countryside" services so that people can obtain legal services in a timely manner; and second, public welfare is the main characteristic of public legal services. As an important part of public legal services, lawyer mediation is entitled to free legal services, and third, professional. Compared with the people's mediation which focuses on moral reasoning, lawyer mediation is obviously more professional. By analyzing legal knowledge, it is easier for the parties to get close to their legal understanding, which makes it easier for them to reach a mutually beneficial solution within the legal framework, thus saving judicial resources and costs.

The third mode is to provide mediation services in a lawyer mediation center set up by a lawyer association. The lawyer association is the lawyer's home, and the lawyer mediation center set up by the lawyer association provides public welfare to some extent. As mediators of the lawyer association center, neutral and unofficial lawyers can ease the antagonistic feelings of the parties when they accept applications from parties or mediate cases transferred by the court, and facilitate amicable mediation of contradictions and disputes. In 2016, the Hangzhou Lawyers Association established the first lawyer mediation center in China, namely the Hangzhou Lvong Mediation Center, which was also the first professional lawyer mediation organization in China, and was fully affirmed by the Ministry of Justice. In September 2020, the Nanjing Lawyers Association launched the "Nanjing Jinling Civil and Commercial Lawyer Mediation Center". It is also a non-profit social organization to further implement the requirements of the Notice on Expanding the Pilot Program of Lawyer Mediation issued by the Supreme People's Court and the Ministry of Justice, aiming to give full play to lawyers' professional, professional and practical advantages, and better mediate civil and commercial disputes. This mode will be a trend in lawyer non-litigation mediation in the future.

The fourth mode is to provide mediation services in the mediation room set up by a law office. A law office may take mediation applications from parties as a lawyer service, and may also accept the mediation cases transferred as entrusted by courts and administrative authorities. This mode is not only one of the market-oriented modes for lawyer mediation, but also provides an opportunity for legal practice in the future.

The basic goals of non-litigation mediation procedure are unblocked appeals channels for parties, saving judicial resources and maximizing benefits. "Reasonably allocate social resources for dispute resolution, and improve the diversified dispute resolution mechanism featuring the organic connection and mutual coordination of reconciliation, mediation, arbitration, notarization, administrative adjudication, administrative review and litigation". As one of the main mediation bodies of the diversified dispute resolution mechanism, lawyer mediation can play an irreplaceable role in saving judicial resources and other non-litigation mediation methods, and is the best choice to resolve disputes to safeguard the legitimate and fundamental rights and interests of parties. Lawyers may, by making full use of their reserved professional knowledge, accurately grasp the characteristics of individual cases, embody mutual feelings, interpret cases, and actively adopt consultation, mediation or other means to stop disputes and litigation in respect of specific disputes, which is conducive to the early resolution of social conflicts and disputes, and is also conducive to the harmony and stability of the society.

Improving and perfecting the diversified dispute resolution mechanism is an important task that must be faced in the period of social transformation. Although the systematic and institutionalized diversified legal mechanism for dispute resolution has not yet been fully established in our country, the existing non-litigation reconciliation, people's mediation, lawyer mediation and arbitration, and litigation are all important ways of resolving social conflicts and disputes, which are already diversified. Although they are different in their respective objects of adjustment, procedural design, and legal effects, their functions are nearly the same. So long as they focus on connection and support, and jointly govern by diversified means to form a joint force to achieve mutual coordination of duties, smooth operational procedures and organic complementation of functions, it will certainly promote the legislative process of relevant laws at the national level and achieve the institutionalization and legalization of such practical achievements as soon as possible.

 

 

 

References

[1] Communiqué of the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China

[2] Communiqué of the Fifth Plenary Session of the 18th Central Committee of the Communist Party of China

[3] Supreme People's Court's Overall Plan for the Pilot Reform of the Dispute Resolution Mechanism that Connects Litigation and Non-Litigation Proceedings

[4] Communiqué of the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China

[5] Opinions of the Ministry of Justice on Promoting the Development of the Public Legal Service System (Si Fa [2014] No.5)

[6] Opinions of the Ministry of Justice on Promoting the Development of the Public Legal Service Platform (Si Fa [2014] No.5)

[7] Opinions of the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council on Improving the Diversified Dispute Resolution Mechanism (Zhong Ban Fa [2015] No.60)

[8] Opinions of the Supreme People's Court on Further Deepening the Reform of the Diversified Dispute Resolution Mechanism by People's Courts (Fa [2016] No.14)

[9] Opinions of the Supreme People's Court and the Ministry of Justice on Initiating the Pilot Program of Mediation by Lawyers (Si Fa Tong [2017] No.105)

[10] Supreme People's Court Issued the Pilot Program for the Reform of Separating Complicated Civil Proceedings from Simple Ones (Fa [2020] No.10)

[11] Implementing Measures of the Supreme People's Court for the Reform of Separating Complicated Civil Proceedings from Simple Ones (Fa [2020] No.11)

[12] Opinions of the Ministry of Justice on Strengthening the Resolution of Social Conflicts and Disputes in the Later Stage of Epidemic Prevention and Control and Post-epidemic Period

[13] Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Proper Trial of Civil Cases Involving the COVID-19 Epidemic (I)

[14] Opinions of the Supreme People's Court on Further Deepening the Reform of the Diversified Dispute Resolution Mechanism by People's Courts (Fa [2016] N

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