The lawsuit in Court is often the last solution to resolve disputes and debt recovery. The court will resolve the case based on the facts, documents, and requests of the parties, as well as apply the law appropriately to make a judgment/ decision. However, even after accepting the petition, the Court will also conduct mediation before bringing the case to trial. This creates conditions for the parties to reach an agreement without opening a trial. In this article, we will review the Mediation stage in the legal process – an effective solution that is often ignored.
1. What is mediation in the civil procedure?
Mediation in legal proceedings as prescribed in the Civil Procedure Code 2015 is a procedural activity conducted by the Court under the civil procedure law to assist the involved parties to reach an agreement and negotiate with each other on the settlement of civil, marriage and family, business, trade and labor cases; contribute to protecting the legitimate rights and interests of agencies, organizations, and individuals that are disputing parties through the intermediary role of the Court.
Thus, Mediation in civil proceedings is a procedure conducted by the Court to help the parties understand their legitimate rights and interests, and agree on the settlement of disputes to save costs and time for the parties and also the prosecuting agencies.
2. Order and procedures for conducting mediation in legal proceedings
- After accepting the lawsuit petitions by the plaintiff, for mediated cases, the Court will plan to hold a meeting for checking the handover of, access to and disclosure of evidence and mediating (“The Meeting“).
- Before conducting the meeting, the judge will notify the parties, their lawful representatives, and defense counsels of the rights and interests of the involved parties about the time, place and content of the meeting.
- In cases where any of the involved parties is absent but involved parties who attend agree to conduct the meeting and such meeting does not affect the rights and obligations of absent involved parties, the Judge shall conduct a meeting between involved parties who attend; if involved parties request to postpone the mediation meeting until all involved parties attend, the Judge must follow their request. The Judge must notify the involved parties of such postponement and the resuming of the meeting.
- At the meeting, The Judge disseminates to involved parties the provisions of laws related to the resolution of the cases so that involved parties can relate them with their rights and obligations and analyzes the legal consequence of the success of the mediation then voluntarily reach agreements with each other about the resolution of the cases.
- After that, the Judge shall direct the plaintiff, defendant, persons with relevant interests and duties, defense counsels of their legitimate rights and interests, and other participants in the mediation meeting (if any) to express their opinions.
- After the involved parties and defenders of their legitimate rights and interests have presented all their opinions, the judge shall determine the issues that the involved parties have agreed upon or have not yet agreed upon and request the involved parties to make an additional presentation about unclear and not agreed contents. The Judges shall make a conclusion on those which involved parties have agreed or not agreed about.
- At the end of the meeting, the Court Clerk shall be in charge of formulating the minute of the meeting. In case the parties agree on a solution to the case, the Judge will request to make a Minute of successful mediation, which will include all the issues agreed upon by the parties and the signatures of the parties.
- In case the involved parties can reach an agreement on the settlement of the whole case, upon the expiry of the 07-day time limit after making the records on successful mediation, no involved parties change their opinion on that agreement, The judge issues a decision recognizing the agreement of the involved parties. This decision will take legal effect from the date of its issuance and will not be appealed or protested according to appellate procedures and shall be subject to judgment enforcement.
3. Pros and Cons of mediation in the legal process
3.1 Pros:
- Can save a lot of time compared to the trial because the process from the beginning of the mediation to the decision recognizing the agreement of the involved parties can only last for 1 month.
- Before opening the court session, the Court conducts mediation; if the involved parties can reach an agreement on the settlement of the case, they will only have to bear 50% of the first-instance court fee. In this case, the plaintiff may agree with the defendant that the defendant bears this fee. Therefore, the plaintiff has the right to request the civil judgment enforcement agency to refund the court fee advances immediately after the decision recognizing the agreement of the involved parties takes legal effect.
- The decision recognizing the agreement of the involved parties will take legal effect from the time it is issued and will not be appealed or protested according to appellate procedures, and at the same time, the judgment will be executed according to regulations. This can save a lot of time because the case is not protracted, moreover, the enterprise has the right to request the judgment enforcement agency to force the obligor to be responsible for the implementation of this Decision.
3.2 Cons:
- Mediation can only be made if both parties agree to come up with a mediation plan and have good faith.
- Mediation is not possible if either party has been duly assembled a second time but is still absent.
- 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 a decision recognizing the agreement of the involved parties, the parties will not be able to initiate a lawsuit against the claims already settled by the court.
The above is the legal opinion of TNTP on the method of Mediation stage in the legal process. TNTP hopes this article will be valuable and useful for businesses.
Best regards,
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