Exploration of Making the Mediation in Advance System in Article 125 of Chinese Civil Procedure Law Mandatory and Comment on the German Pre-litigation Mandatory Mediation System

Abstract

In the new era, the central government has made important decisions to “Insist on the prioritization of non-litigation disputes resolution mechanism” and has put forward new requirements for the further development of the non-litigation disputes resolution mechanism. Article 125 of the "Civil Procedure Law of the People's Republic of China" (hereinafter referred to as the Civil Procedure Law) stipulates the mediation in advance system. This system, which was newly added in 2012, has shown its limitations due to its insistence on “Only if there is consensus, there could be mediation”. In order to further strengthen the construction of the case distribution mechanism and alleviate the judicial work dilemma of “Many cases but few judges”, it needs a new interpretation of the “the rule of autonomy of will in mediation” and breaking through the traditional mediation process which must be initiated voluntarily by the parties and meanwhile still strictly adhering to the parties have free will for the conduct and outcome of the mediation process. Many countries and regions have broken the rule that the initiation of mediation procedures must comply with the will of the parties and established pre-litigation mandatory mediation system and gained great effects. In this article, I discuss the theoretical rationality and practical feasibility of the pre-litigation mandatory mediation system in the new era. It is recommended to learn from the experience of overseas legislation, explore the amendment of Article 125 of the Civil Procedure Law and establish a Chinese-style pre-litigation mandatory mediation system. At the same time, in order to cooperate with the operation of the pre-litigation mandatory mediation system, it is necessary to promote the improvement of supporting institutional measures such as the working mechanism for linking up litigation and mediation.