Opinions on Pilot Work Regarding Lawyer Mediation

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Title: Supreme People's Court and Ministry of Justice Opinions on Pilot Work Regarding Lawyers Mediation
Promulgating Entities:Supreme People's Court, the Ministry of Justice
Reference number: Justice Notice (2017) No. 105
Promulgation Date: 2017-9-30
Expiration date: 
Source of text: http://www.chinapeace.gov.cn/2017-10/16/content_11433852.htm

High People's Courts and Justice Departments (bureaus) of Beijing, Heilongjiang, Shanghai, Zhejiang, Anhui, Fujian, Shandong, Hubei, Hunan, Guangdong, and Sichuan Provinces (directly governed municipalities)

So as to implement the "CPC Central Committee Decision on Several Major Issues Regarding Comprehensively Advancing Governance in Accordance with Law" as well as the CPC Central Committee General Office and General Office of the State Council's "Opinions on Improving zaDiversified Dispute Resolutions Mechanisms" and "Opinions on Deepening Reform of the Lawyers Systems" and the Supreme People's Court's "Opinions on People's Courts Further Deepening Reforms on Diversified Dispute Resolutions Mechanisms" and to give full play to lawyers' expert, professional, and practice advantages in preventing and resolving disputes and conflicts; to establish and improve the system of lawyer mediation, and promote the formation of a diversified dispute resolution system with Chinese characteristics; the following Opinions on initiating pilot efforts on lawyer mediation are hereby submitted.

I. General Requirements

Guiding ideology. Fully implement the spirit of the 18th Party Congress and its third, fourth, fifth, and sixth plenary sessions; thoroughly implement the spirit of General Secretary Xi Jinping's series of important talks and important guidance for lawyers; focus on the goal of fully advancing the goal of governance in accordance with law; deepen the reform of diversified dispute resolutions mechanisms; complete mechanisms connecting litigation and mediation; give full play to the role of lawyers professional functions; establish work models for lawyers in mediation; innovate measures and methods for lawyers in mediation; effectively resolve all kinds of disputes and conflicts; preserve the parties' lawful rights and interests; promote social fairness and justice, and preserve social harmony and stability.

2. Basic Principles

--Persist in mediating in accordance with law. Lawyer mediation work shall be conducted in accordance with law and must not violate prohibitions in laws regulations, must not harm the national or public interest or the lawful rights and interests of parties and other interested persons.

-- Persist in fairness and voluntariness. Lawyers carrying out mediation efforts shall fully respect the wishes of all sides, respect the right of the parties to select dispute resolution mechanisms, and safeguard their procedural rights.

-- Persist in neutrality in mediation. Lawyers in mediation shall maintain neutrality, must not show partiality to any party through words or deed, and are to preserve the objectivity, fairness, and acceptability of mediation outcomes.

-- Persist in confidentiality of mediation. Except where the parties uniformly agree or where the law provides otherwise, the subject of the mediation, the mediation process, the content of the mediation agreement, and so forth, must not be made public; and the parties' personal private information and commercial secrets must not be disclosed.

-- Persist in convenience and efficiency. Lawyers utilize expert knowledge to carry out mediation efforts and shall emphasize the efficiency of their work, flexibly determining the means, methods, and procedures for mediation on the basis of the actual conditions of the conflict, and establishing convenient and effective work mechanisms.

-- Persist in Effective Linkages. Strengthen organic linkages between lawyer mediation and civil mediation, administrative mediation, industry mediation, commercial mediation, and litigation mediation, giving full play to the characteristics and advantages of each and forming a dispute procedural linkages, and dispute resolution mechanisms where their advantages are mutually complementary,and they are coordinated and cooperative.

II. Establish Work Models for Lawyer Mediation

Lawyer mediation refers to activities by lawyers, lawfully established lawyer mediation workrooms or lawyer mediation centers serving as a neutral third party to preside over mediation, assisting parties of all sides in a conflict to reach an agreement through voluntary negotiation and resolve a disagreement.

3. Set up lawyer mediation workrooms in people's courts. All levels of people's court in pilot regions should merge the establishment of lawyers mediation and litigation services centers, setting up lawyer mediation workrooms in people's courts litigation centers, litigation/mediation linkage centers, or people's court divisions with capacity; and allotting necessary work facilities and work spaces.

4. Set up lawyer mediation workrooms in public legal service centers (stations). Pilot area's county level public legal services centers and township public legal service stations shall set up specialized lawyer mediation workrooms and lawyers are to be appointed as mediators by the public legal service center to provide public interest mediation services.

5. Setup lawyer mediation centers in lawyers associations. Pilot area lawyers associations at the provincial or districted level are to set up lawyer mediation centers. Under the guidance of lawyers associations, lawyer mediation centers are to organize lawyers to act as mediators, and participate in conflict resolution and dispute mediation on application of the parties or through transfer by a people's court.

6. Law firms are to set up lawyer mediation workrooms. Law firms with capacity are encouraged and supported in setting up mediation workrooms and organizing mediation teams,and may make accepting parties' applications for mediation an item of the legal services they carry out; and may at the same time accept mediation cases transferred by the people's courts and administrative organs.

III. Complete Work Mechanisms for Lawyer Mediation

7. Clarify the scope of cases for lawyer mediation. Lawyer mediation may accept all kinds of civil and commercial disputes, including the civil portion of criminal cases with attached civil disputes, except for those cases which by their nature cannot be mediated such as confirmation of marriage or identity relationships.

8. Establish and complete a system of managing qualifications for lawyer mediation work. Pilot area provincial level judicial-administrative organs and lawyers associations, together with people's courts, are to study and draft management measures, clarifying qualification requirements for law firms and lawyers undertaking lawyer mediation work, including scope of personnel, limits on years in practice, case volume, credit status, and so forth, Judicial-administrative organs and lawyers associations, together with people's courts, are to establish registries of law firms and lawyers undertaking lawyer mediation work.

9. Regulate procedures for lawyer mediation work. People's courts, public legal service centers (stations, lawyers associations, and law firms shall provide a registry of law firms and lawyers providing undertaking lawyer mediation work, and make registry information public on notice boards, official websites, and other such platforms, so as to facilitate parties' inquiries and selection.

When law firms and lawyers accept relevant retention and representations, or participate in dispute resolutions, they shall inform the parties to give preference to selecting mediation or other non-litigation means to resolve disputes.

Lawyer mediation is usually presided over by a single mediator. In major, difficult or complicated cases, or where the parties so request, two or more mediators may handle the case together,and the lawyer mediation workroom or law mediation center is to appoint one mediator to preside. Where parties have legitimate cause, they may apply to change lawyer mediators. Lawyer mediators lawfully carry out mediation efforts on the basis of mediation procedures, and the period for lawyer mediation is 30 days, but where parties of both sides agree to an extension of the mediation time, this limit does not apply. Where an agreement is reached through mediation,a written mediation agreement is issued; where an agreement cannot be reached before completion of the time period, and the parties do not agree to continue mediation, mediation is concluded.

Lawyer mediators organizing mediation shall use a written format to record the matters n controversy and the circumstances of the mediation, and have the parties of both sides sign and confirm it. Lawyer mediation workrooms or lawyer mediation centers shall establish complete electronic and hard-copy archives for party inquiries. Where parties have not reached an mediation agreement when the mediation procedures conclude, then after obtaining the consent of the parties on each side,lawyer mediators may commemorate in writing those items over which both sides had no disagreement in the course of mediation, and have the parties sign and confirm it. In litigation procedures, except for where national interests, the public interest, or the lawful rights and interests of other are involved, the parties do not need to present evidence on matters over which have already been confirmed as having no disagreement in the course of mediation.

Where lawyer mediation organizations established in public legal services centers (stations) lawyers associations or law firms accept the parties' direct application and preside over mediation of a dispute, it is to be carried out with reference to the procedures above.

10. Encourage immediate performance on mediation agreements. Where, upon mediation by a lawyers mediation workshop or lawyers mediation center, the parties reach a mediation agreement, the lawyer mediators shall encourage and guide the parties to promptly perform on the agreement. Where parties refuse or delay performance without legitimate reasons, the costs related to mediation and enforcement are to be entirely or partially borne by the party that has not performed.

11. Improve connection mechanisms between mediation agreements and payment orders.。 Where there is content related to payment of money or negotiable instruments in a settlement or mediation agreement reached through lawyer mediation, and the creditor applies for an order to make payment from the basic level people's court with jurisdiction on the basis of the Civil Procedure Law and its judicial interpretations, the people's courts shall issue the payment order in accordance with law; where the obligee does not raise a written objection within the legally prescribed time limits and does not perform the payment obligation on time, the people's court may compel enforcement.

12. Improve procedures for judicial confirmation of mediation agreements. Where an agreement that is a civil contract in character is reached through mediation by a lawyers mediation workroom or lawyers mediation center, the parties may apply to the basic level people's court or a court division for the area where the lawyers mediation workroom or center is located to have the validity of the agreement confirmed, and the people's court shall confirm the validity of the agreement in accordance with law.

13. Establish a system for recusal of lawyer mediators. Where lawyer mediators have any of the following circumstances, the parties have the right to apply for a recusal: Where they are the close relative a party or their representative; where they have an interest in the dispute; or where they have other relationships with the parties or representatives that might impact the fairness of the mediation. Where lawyer mediators have the circumstances described above, and parties request a recusal, the lawyer mediators shall be recused; and where the parties do not request a recusal, the lawyer mediators shall promptly inform the parties and proactively recuse themselves. Where parties unanimously agree to continue mediation, lawyer mediators may continue to preside over the mediation.

Lawyer mediators must no longer accept representation of parties on either side to serve as a representative in arbitration or litigation regarding that controversy or another dispute closely related to that controversy, and must also not serve as a people's assessor, mediator, witness, evaluator, interpreter, or so forth in subsequent resolution procedures for that controversy.

14. Establish scientific mechanisms for assuring funding. Where mediation workrooms set up in law firms accept parties' direct application to mediate disputes, they may follow the principles of compensation and low pricing to collect fees from both parties, except where one party agrees to bear the entire amount. Mediation fee collection standards and measures are to be determined by each pilot region on the basis of actual circumstances, and reported to the relevant departments for approval and recording.

Where lawyer mediation workrooms established in public legal services centers (stations) and lawyer mediation centers established in lawyers associations accept the parties' direct application to mediate a dispute, the judicial-administrative organs and lawyers associations are to deal with the expenses by means of government procurement of services. The expenses for lawyer mediators' mediation of legal aid cases are to be dealt with by the legal aid institution through channels for government procurement of services.

Where lawyer mediation workrooms are set up in people's courts, the people's courts should deal with the expenses through government procurement of services channels, based on the number quality, and social efficacy of dispute mediation, and include this as a special item in the court budget, they specific measures are to be determined by each pilot region on the basis of actual conditions.

15. Give full play to the use of litigation fees as leverage. Where parties have reached a settlement agreement apply to withdraw a lawsuit, people's courts are to waive the litigation fees. Where during litigation parties are mediated to reach a mediation agreement, the people's courts may reduce the litigation fees collected by half. Where the party of one side does not participate in mediation without legitimate reason, or clearly maliciously causes the mediation to not succeed, the people's courts may, on the basis of the specific circumstances support the party without fault's lawfully submitted requests for compensation of reasonable lawyers fees and other such appropriate requests.

IV. Strengthen work safeguards

16. Strengthen Organizational Leadership Pilot area people's courts, judicial-administrative organs, and lawyers associations should place great emphasis on this reform effort, strengthening the establishment of the system and coordination of the work, vigorously advancing the smooth implementation of the pilot efforts. Within the framework of the lawyer mediation system, innovate new work models and methods, draft implementation opinions suited to the characteristics of that region, continuously summarize experience, and actively explore, so as to provide replicable or adaptable systems and experience to be spread across the entire country.g

17. Actively guide participation. Pilot region people's courts, judicial-administrative organs, and lawyers associations should actively guide lawyers participation in diversification of conflict and dispute resolution; should encourage and recommend that lawyers serve as mediators in people's mediation organizations, arbitration establishments, commercial mediation organizations, and industry mediation organizations; should encourage lawyers to draw on contemporary techniques and methods to innovate methods for mediation work and actively participate in online mediation efforts; should urge lawyers to actively take social responsibility and reflect social values; should fully mobilize lawyers active engagement in mediation work, and should bring about the sustainable development of lawyers mediation.

18. Strengthen team management. Strengthen training of lawyer mediators in areas such as professional ethics, practice discipline, and mediation skills; establish a high level corps of mediating lawyers, ensuring the quality of mediation cases. Explore establishing a system of reviewing work of lawyers participation in public interest mediation, with commendations and incentives. People's courts, judicial-administrative organs,and lawyers associations, shall give material and honorific prizes to lawyer mediation workrooms, lawyer mediation centers, and lawyer mediators with outstanding performance.

19. Strengthen pursuit of accountability. Lawyer mediators that mediate illegally, violate the recusal system, disclose parties personal information or commercial secrets, or who have other conduct in violation of laws, or contrary to lawyers practice discipline or professional ethics shall be suspended or banned from legal practice on the basis of the circumstances, or be given an industry or administrative punishment by the lawyers associations or judicial-administrative organs, in accordance with law and regulations. Lawyers associations shall formulate detailed implementation measures and report these for filing to the local judicial-administrative organs.

20. Strengthen efforts on publicity. Pilot region people's courts, judicial-administrative organs, and lawyers association should vigorously publicize they function and advantages of lawyer mediation, encouraging citizens, legal persons, and other organizations to give preference to choosing lawyer mediation to quickly and efficiently resolve disagreements, and create a positive for lawyers carrying out mediation operations.

21. Strengthen guidance and oversight. The Supreme People's Court and Ministry of Justice will conduct guidance and oversight over pilot efforts, earnestly studying prominent problems that exist in the pilots, and comprehensively assessing the actual efficacy of pilot plans, summarizing each area's successful experiences with diversified dispute resolutions mechanism reforms, and promoting the institutionalization and codification of successful reform experiences.

22. High People's Courts and Justice Departments (bureaus) of Beijing, Heilongjiang, Shanghai, Zhejiang, Anhui, Fujian, Shandong, Hubei, Hunan, Guangdong, and Sichuan Provinces (directly governed municipalities) Pilot provinces (directly governed municipalities) may carry out pilot efforts throughout the province or in selected areas, and report the pilot plan to the Supreme People's Court and Ministry of Justice.

Supreme People's Court, the Ministry of Justice

2017/9/30

 

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