Comparison between in-court mediation and out-of-court mediation under current Vietnamese law
During the process of improving the Vietnamese legal system, mediation has been recognized as a flexible and effective method of dispute resolution. Among these, the two most common forms of mediation are in-court mediation and out-of-court mediation. Due to certain differences in terms of mediating authorities, procedures, as well as the legal value of mediation outcomes, identifying and comparing these two forms of mediation is of significant importance not only from a theoretical perspective but also in practice when selecting an appropriate dispute resolution method. This paper compares in-court mediation and out-of-court mediation under current Vietnamese law, thereby clarifying their similarities and differences as well as assessing the advantages and limitations of each form of mediation.
1.Similarities between in-court mediation and out-of-court mediation
In order to obtain a comprehensive view of in-court and out-of-court mediation, it is first necessary to clarify the similarities between these two forms. This serves as a basis for identifying the common characteristics of mediation as a dispute resolution method.
a.First, the common objective of both forms of mediation is to resolve disputes without adjudication by judgment, thereby saving time and costs for the Parties while reducing the workload of judicial authorities.
b.Second, regarding the role of the neutral third party, in in-court mediation, the intermediary is a Judge or a person assigned by the Court; in out-of-court mediation, the intermediary may be a mediator, agency, organization, or individual selected by the Parties. However, the common feature is that such third party does not impose decisions but merely assists and guides the Parties toward reaching an agreement.
c.Third, the outcome of mediation in both forms is an agreement based on the voluntary will of the Parties. The content of the agreement is recognized and has legal value only if it does not violate prohibitions of law, is not contrary to social morals, and is established on the principle of voluntariness.
2.Differences between in-court mediation and out-of-court mediation
In addition to the similarities, in-court mediation and out-of-court mediation differ in terms of implementation and the legal value of mediation outcomes. A comparison based on specific criteria helps clarify these differences, as follows:
| Comparison criteria
|
In-court mediation |
Out-of-court mediation |
| Concept | In-court mediation is a procedure conducted by the Court during the process of resolving civil cases, after the litigants have filed a lawsuit and the case has been accepted by the Court in accordance with the law.
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Out-of-court mediation is a dispute resolution method applied to cases that have not been or are not yet brought before the Court. |
| Nature | Mandatory, as it is conducted under the direction of the Court. | Based on the agreement of the Parties, in accordance with the principle of voluntariness.
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| Time of mediation
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The time of in-court mediation is during the trial preparation stage before the Court. | Prior to filing a lawsuit with the Court, the Parties may conduct out-of-court mediation at a flexible time as agreed upon.
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| Mediation procedure | Mediation is conducted within judicial proceedings before the Court, under the supervision of a Judge, and in compliance with the procedures prescribed by the 2015 Civil Procedure Code.
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The Parties may agree on the mediation process, time, venue, mediator, and even the mediation method. In the absence of such agreement, the mediator shall propose an appropriate procedure. |
| Legal consequences | Unsuccessful mediation: The Court shall prepare a record of unsuccessful mediation and proceed to trial.
Successful mediation: Upon expiration of the statutory time limit from the date of the successful mediation record, if the litigants do not change their opinions, the Court shall issue a decision recognizing the agreement of the Parties. Such decision has legal effect equivalent to a judgment and shall be enforced in accordance with civil judgment enforcement procedures. |
Unsuccessful mediation: The Parties may apply other dispute resolution measures, including arbitration or litigation before the Court.
Successful mediation: The Parties may prepare and sign a successful mediation record; however, such outcome does not have binding legal force.
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3.Assessment of advantages and disadvantages of in-court and out-of-court mediation
Based on the similarities and differences mentioned above, an objective assessment of the advantages and disadvantages of each mediation method can be made, thereby clarifying the suitability of in-court and out-of-court mediation for specific types of disputes.
a.Advantages and disadvantages of in-court mediation
- Court-based mediation has the notable advantage of ensuring high legal certainty, as it is conducted under the supervision of judicial authorities and in strict compliance with procedural rules. Successful mediation outcomes are recognized and enforced by the Court, thereby protecting the lawful rights and interests of the disputing Parties. In addition, compared to full adjudication, court mediation helps save time and litigation costs, and is particularly suitable for complex disputes requiring the intervention of state authorities.
- However, despite its high legal value, court mediation lacks flexibility due to procedural constraints. The judicial environment and psychological pressure associated with litigation may affect the cooperative spirit and goodwill of the Parties. Furthermore, this form of mediation is not suitable for disputes requiring a high level of confidentiality, as judicial proceedings are generally conducted publicly.
b.Advantages and disadvantages of out-of-court mediation
- Out-of-court mediation has a major advantage in terms of confidentiality, as the mediation process does not need to be conducted publicly, thereby helping the Parties preserve business secrets. This form allows the Parties to proactively select mediators with appropriate expertise and adopt flexible procedures, thereby facilitating the maintenance of business relationships through non-adversarial negotiations.
- In addition to the above advantages, out-of-court mediation still has certain limitations, such as the lack of a direct enforcement mechanism, making its effectiveness largely dependent on the goodwill of the Parties. Although Article 416 of the 2015 Civil Procedure Code provides that the results of out-of-court civil mediation may be recognized by the Court, requesting such recognition incurs additional costs for the Parties. Therefore, in practice, the cost of conducting out-of-court mediation is often higher than that of in-court mediation.
The above analysis presents a comparison of the advantages and limitations of in-court and out-of-court mediation under current Vietnamese law. A proper understanding of the nature, scope of application, and legal consequences of each form of mediation serves as an important basis for individuals and organizations to select an appropriate dispute resolution method, thereby saving time and costs and minimizing legal risks. When choosing mediation, the Parties should carefully consider the nature of the dispute, confidentiality requirements, enforceability of the mediation outcome, and the objective of maintaining relationships between the Parties.
In cases where individuals or enterprises wish to further discuss the selection of an appropriate mediation method, the drafting of mediation agreements, or the assessment of the legal effectiveness of mediation outcomes in both in-court and out-of-court proceedings, please contact TNTP for timely consultation and assistance.
Sincerely,
