论仲裁中的调解制度
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论文标题:论仲裁中的调解制度
仲裁中的调解是指仲裁程序开始后,在当事人合意的基础上,由仲裁员对案件进行调解,调解成功,就依和解协议制作调解书或裁决书结案,调解不成则重新恢复仲裁程序。仲裁中的调解制度有利于融合仲裁与调解之长,充分发挥程序的灵活性、体现当事人在纠纷解决中的意思自治性,有利于裁决结果的自动履行。 我国是调解的故乡,根据法律规定,调解也广泛应用于仲裁实践当中。但值得关注的是,我国仲裁中的调解制度近年来却日益受到部分西方学者的质疑,且从现实情况来看,我国现行的仲裁调解制度实施效果也不尽理想。分析其原因,除了我们对仲裁中调解制度的合理性与正当性论证不够外,我国仲裁实践中的不合理操作也是重要原因之一。 本文即主要论述了仲裁、调解的概念、仲裁与调解的共同性与差异性,介绍了赞成和反对仲裁中调解的各种观点,分析了仲裁中调解的合理性与正当性;在肯定仲裁中调解制度的基础上,总结了我国仲裁中调解制度形成的原因及现状,介绍了相关各国关于仲裁与调解相结合的立法例及国际仲裁机构的仲裁规则中的调解制度,通过对比,指出我国仲裁中调解制度存在的问题,并论述了我国仲裁中调解制度应遵循的原则及完善我国仲裁中调解制度的具体措施。
Intermediation is an ideal approach to settle civil or business dissension in that it enjoys properties of thrifty, independence, simpleness, flexibility and secrecy compared with others. China who enjoys the international recognition of oriental excellence and oriental experience in the civil intermediation is the creedal land of it. We should inherit and develop the tradition of legal culture to realize the organic combination of arbitration and intermediation, because this will affect the development and credit of Chinese arbitrative organization and also related to the outer-spread of the oriental experience. However, there are huge gaps between mediation systems of China and other countries with advanced mediation system. Therefore it is significant to study and improve that system in the view of internationalization. This thesis dissertate the intermediation system and raises some suggestions about improving it in China by separating in four parts. The first part is about the similarity and difference between arbitration and mediation. Arbitration is a legal system which means the two disputed parties deliver voluntarily their dispute to the all-agreed non-judicatory-organization third party in order to try and make the final arbitrament which is obliged to both disputed parties. Whereas intercession is a disputer settlement approach which means the disputed parties deliver the dispute to the agreed neutral third party who will promote the negotiation solution in a proper method. There are lots of difference and community between the two. The community includes that, first, the bases of acquiring jurisdictions of the two are volunteer; second, both of them are non-official relief approach to solving problems; third, they must obey particular process regulation; fourth, the enjoy the merits of secrecy, agility, simpleness, fast and low expense; fifth, the third party should handling disputes in neutral manner. In contrast, their differences include, first, they have different aims; second, the stability of parties’will are different; fourth, the handling agility differs; fifth, the intercede report and the arbitration report are different in effect. Either mediation or arbitration has its own merits and defects. The differences between them lead to a good chance to alternative use and amalgamation; meanwhile, people should be careful when choose to settle down disputes so as to seek victory and
minimize losses. But they can not make up for one"s deficiency by learning from others" strong points automatically due to their differences. Thereby, there is opportunity for their combination. The second part says that there is an argument about whether it should be interceded or arbitrated. The theories to support executing mediating in arbitration are: Wealth theory, benefit theory, obligation theory, trust theory and advancing gradually theory. While the theories to oppose it are: violation theory, confusion theory, control-losing theory and danger theory. The thesis analyzes the rationality and justification of it based on the above theories. The rationality rests with insisting neutral equity. The justification rests with follows the regulation scrupulously. It is supposed that if operate suitably this approach will obey the equity and process principle. This will not displace the roles of arbitrator and mediator. The third part analyses on the formatting reasons and status con of the mediation system in arbitrary in China and reviews the mediation system in other countries as well as the system in international arbitrary institutions. It is found there are many deficiencies in the system design and conformation. It affected its function. The defects contains: 1) present mediation can only be exerted after the
appointment of arbitrator; furthermore he/she will see the case in the session. This mediation could not carry out from the right beginning to the end. 2) The protection to the parties is far from enough in the present system, which will be apt to come to reiteration. 3) The force adeffect of report prescribed in present Arbitration Law is controversial. 4) The present mediation system is not flexible. Part four puts forward the ideas and corresponding measures to improve mediation system in arbitrary in China. This passage thinks that the system should follow the Volunteer principle, fast-timely principle and all-agreed principle. We can modify our system by referencing the counterpart in advanced countries: 1) the complete set of mediation process should be prescribed concretely so that the mediation can carried out thoroughly. 2) The independent mediation center can be established on condition that they own a considerable amount of professional mediator team and a mature operating system and a mature arbitrary committee. 3) Establish the legal authority of a mediation agreement.[page]
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