MEDIATION AT COURT
During operations, disputes between businesses are inevitable. Typically, businesses will choose to file a lawsuit at the competent People’s Court or the Commercial Arbitration Center to resolve disputes between the parties. However, there is also an effective dispute resolution method that businesses can opt for, which is engaging in mediation at Court. In this article, TNTP will introduce the method of resolving disputes through mediation at Court during the Pre-procedural mediation.
1. Definition of pre-procedural mediation
Clause 1, Article 2 of the Mediation and Dialogue Law at the Court 2020 stipulates: “Mediator at court (hereinafter referred to as mediator) means a person who is eligible and appointed by the Chief Judge of the People’s Court of province to mediate disputes”.
Clause 2, Article 2 of the Mediation and Dialogue Law at the Court 2020 stipulates: “Mediation at court refers to mediation activity conducted by a Mediator before the court accepts a civil case in order to assist parties in mediation to negotiate the civil case settlement as per this Law”.
Thus, mediation at court during the pre-litigation stage is a mediation activity held at Court by a Mediator before the Court takes jurisdiction over the case. Pre-litigation mediation at Court is not a mandatory stage conducted before the Court takes jurisdiction over the case. The plaintiff will decide whether to mediate pre-litigation or not upon notification from the Court.
2. Pre-litigation mediation stages
Upon receiving the Court’s notification, if the plaintiff does not agree to pre-litigation mediation, the Court will record the plaintiff’s opinion and carry out further proceedings.
In case the plaintiff agrees to mediation, pre-litigation mediation at Court is conducted as follows:
– Step 1: The plaintiff fills in information about the selection of pre-litigation mediation and selection of a Mediator in the Statement of opinion of the plaintiff/requester. Accordingly, the Court will advise the plaintiff to help them choose a Mediator suitable for the case.
– Step 2: The plaintiff submits a Statement of Opinion to the Court after filling out all information about the selection of mediation and selection of a Mediator.
– Step 3: The Court will arrange a mediation schedule and assign the case to the selected Mediator. The mediator will arrange and inform the plaintiff and defendant of the mediation schedule information
– Step 4: After arranging the mediation schedule, the Mediator will conduct the mediation session at the Court
– Step 5: In case the parties agree on a mediation plan, the Mediator will set a time to open the meeting to record the mediation results. After the end of the meeting, the Judge will sign the Minutes recording the mediation results
– Step 6: In case the parties have no comments on changes, additions or objections to the Minutes recording the mediation results within 15 days from the date the Minutes recording the mediation results are issued, the Court will issue a Decision recognizing the successful mediation results. This decision takes legal effect from the date of issuance and is non-appealable, and is enforceable without going through the appellate procedure
Note: Parties participating in mediation at Court will not have to pay fees, except in the following cases:
(i) Disputes related to commercial business with a significant value;
(ii) When the parties agree to choose a mediation location outside the Court headquarters; expenses when the Mediator reviews the current status of assets related to civil cases that are located outside the administrative boundaries of the province where the Court with jurisdiction is located;
(iii) The cost of foreign language interpretation services.
3. Advantages and Disadvantages of Pre-litigation mediation
– Advantages:
(i) Save time and costs to resolve disputes. The resolution time for disputes through Pre-litigation mediation at the Court lasts only one month, whereas regular Court proceedings typically extend from several months to several years. Additionally, court mediation fees are deducted from the state budget. Therefore, if the parties request mediation that falls outside the cases requiring mediation fees, the parties will not have to pay for Pre-litigation mediation at Court.
(ii) The case after successful mediation is not prolonged because the decision recognizing successful mediation is not subject to appeal or protest according to appellate procedures and takes effect from the time it is issued and executed according to regulations under the law. The parties are responsible for implementing the decision and the obligee has the right to request the Judgment Enforcement Agency to force the obligated party to be responsible for implementing the Decision recognizing successful mediation results.
– Disadvantages:
(i) The pre-litigation dispute resolution method at Court is implemented only when the parties are willing to mediate, and they must mutually agree on the mediation plan.
(ii) As mediation requires the agreement of the parties, one party may have to share part of the benefits with the other party.
(ii) It is not possible to initiate legal proceedings against the claims in the Decision recognizing successful mediation.
Above are some legal sharings on resolving disputes through Pre-litigation mediation at Court. Hope this article is useful to you.
Best Regards.
TNTP & ASSOCIATES INTERNATIONAL LAW FIRM
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