When mentioning dispute resolution options between enterprises, we often think of suing at a Court or Suing at a Commercial Arbitration Center. However, in addition to the above two options, enterprises can choose another option, which is mediation in court. In this article, TNTP will introduce to enterprises an effective dispute resolution method, which is pre-procedural mediation.

1. What is pre-procedural mediation?

Pre-procedure mediation under the Law on Mediation or Dialogue at Court 2020 is an activity held at the Court before the Court accepts civil cases to assist the parties involved in the mediation of civil cases. Mediation will be conducted by Mediators who are qualified to be appointed by the Chief Justice of the Provincial People’s Court to conduct mediation. Pre-procedure mediation is not a procedure that must be carried out before the Court proceeds to accept the civil case; however, the Court will notify and request the plaintiff to accept the pre-procedural mediation or not.

2. Pre-litigation mediation stages

– If the plaintiff does not agree to pre-procedure mediation, the court will take note of the opinion and not conduct the mediation to carry out further proceedings.

– If the plaintiff agrees to mediation, the next stages are as follows:

Stage 1: Plaintiff writes information in the Statement of Opinion of the Plaintiff/Requester on the selection of mediation and mediator. The court will advise the plaintiff to choose the right mediator for the case.

Stage 2: After filling in all information in the Statement of Opinions, Plaintiff returns to the Court the Minutes of Opinion.

Stage 3: The court will assign the case to the selected mediator and arrange the mediation schedule, the information about the mediation schedule will be arranged by the mediator and notified to the plaintiff and the respondent.

Stage 4: After arranging the mediation schedule, the Mediator will conduct the Mediation session at the Court.

Stage 5: If the parties agree on a mediation plan, the mediator will set a time to open a meeting to record the results of the mediation. At the end of the Session, the Court Judge will sign and confirm the Minutes of mediation results.

Stage 6: Within 15 days from the date on which the Minutes of recording the results of mediation are issued, if the parties have no opinion on changes, additions, or objections to this Minutes, the court will issue the Decision on recognition of successful mediation. This Decision will take legal effect from the date of issuance and will not be appealed or protested according to appellate procedures and shall be subject to judgment enforcement.

Note: The cost of mediation at the Court is covered by the state budget. The parties will have to bear the mediation fee if the case falls into one of the following cases: (i) Disputes on business and trade related to the monetary claim; (ii) When the parties agree to select a place for mediation or dialogue outside the court’s headquarters; when the mediator examines the current state of assets related to the civil case or administrative lawsuit which are outside the administrative boundaries of the province where the competent court is located; (iii) Foreign language interpretation costs.

3. Pros and cons of Pre-procedure mediation

a) Pros

– Can save a lot of time compared to the adjudication procedure because the process from the beginning of the medication to the Decision to recognize the successful mediation results.

– Cost savings because the mediation in court is guaranteed by the state budget, so if it is not in the cases where the costs are incurred, the parties may not have to bear any costs at all.

b) Cons

– The mediation can only be made if both parties agree to come up with a mediation plan and have good faith in mediation.

– Due to the need to agree to come up with a mediation plan, the plaintiff may have to share a part of the benefits with the defendant.

– If the mediation has been agreed upon and the Court has issued the Decision to recognize the successful mediation results, the party will not be able to initiate a lawsuit against the claims already resolved by the court.

Above is the legal opinion of TNTP on the method of dispute resolution Pre-procedure Mediation at Court. TNTP hopes this article will be valuable and useful for enterprises

Best regards,

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TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com