Insights

Does Ningbo Prosecute Divorce Must Be Mediation First

Ningbo Author：LuXu WANG

One of the parties did not understand at the time of the first lawsuit for divorce: both parties have reached the point where they are incompatible with each other, why does the court organize mediation? She asked me: is it necessary to mediate before the lawsuit for divorce? How does the mediation procedure go? Can you refuse to mediate and hold a court session directly?

1. legal basis

article 1079 of the the People's Republic of China Civil Code: When the people's court hears a divorce case, it shall conduct mediation; if the relationship has indeed broken down and mediation is invalid, the divorce shall be granted.

Article 122 of the the People's Republic of China Civil Procedure Law: If a civil dispute brought by a party to a people's court is suitable for mediation, mediation shall be conducted first, except where the party refuses to mediate.

Article 96 of the "the People's Republic of China Civil Procedure Law": When hearing civil cases, the people's courts shall distinguish right from wrong and conduct mediation in accordance with the principle of voluntariness of the parties and on the basis of clear facts.

2. core points

1. Mediation is a statutory procedure in divorce cases.

The Civil Code clearly stipulates that people's courts "shall conduct mediation" in the trial of divorce cases ". This means that mediation is an indispensable link in divorce proceedings. The judge may organize mediation between the two parties after filing the case, before the trial, during the trial and even before the judgment. The purpose of mediation is to resolve conflicts, facilitate reconciliation, and reduce the burden of litigation of the parties.

Mediation must be voluntary

although the court should conduct mediation, mediation must be based on the willingness of both parties. If a party explicitly disagrees with mediation, the court cannot force mediation and shall enter the trial procedure in accordance with the law. It should be noted that in practice, in order to alleviate the pressure of more cases and fewer people, some courts may use the mediation procedure as a pre-process. Even if the parties do not agree, they need to wait for a certain mediation period. In Ningbo, pre-litigation mediation is usually undertaken by the court litigation mediation docking center and specially invited mediation organizations. The parties can participate in audio and video mediation online through the "Mobile Micro Court" or Zhejiang Court Network. If mediation fails, the case will be officially filed.

3. Three outcomes of divorce mediation

mediation and reconciliation: after mediation, both parties decide not to divorce, the plaintiff withdraws the lawsuit or the court will handle it according to withdrawal, and the marriage relationship will continue to exist.

Divorce mediation: The two parties reach an agreement on divorce, property division, child support and other issues, and the court produces a mediation statement. The conciliation statement has legal effect after being signed by both parties and has the same enforcement power as the judgment.

Mediation failed: the two parties could not reach an agreement, and the court held a hearing in accordance with the law and made a judgment.

4. The difference between pre-litigation mediation and litigation mediation.

Pre-litigation mediation: mediation conducted by the court litigation mediation docking center or specially invited mediation organization before the court formally files the case. The term is 30 days, and the maximum is not more than 60 days. If mediation fails, it shall be transferred to the formal filing procedure.

Litigation mediation: mediation presided over by the host judge after the case is filed. Throughout the first instance, second instance and even the implementation stage.

3. boundary conditions

  • the parties have the right to refuse mediation, but the pre-litigation mediation procedures of some courts still need to go through the statutory time limit.
  • The agreement reached in the mediation process needs to be examined and confirmed by the court before the mediation statement can be enforced.
  • After the mediation letter takes effect, the parties are generally not allowed to appeal, but if the mediation is found to be contrary to the principle of voluntariness or illegal in content, they may apply for a retrial.
  • For cases with special circumstances such as domestic violence, the parties may apply for a personal safety protection order while requesting mediation.

4. operational steps

1. Preparation before filing a case

  • clear their own demands and bottom line
  • collect evidence of relationship breakdown, property status, child support, etc.
  • Decide whether you are willing to accept mediation and the mediation options that are acceptable.

2. Strategies in the face of mediation

  • if you are willing to mediate, actively participate, but do not easily make commitments beyond the bottom line.
  • If you do not agree to mediation, submit a written opinion to the court in a timely manner, explicitly requesting to enter the trial proceedings as soon as possible
  • pay attention to words in the mediation process and avoid making self-confessed statements that are not good for you.

3. Treatment after the conclusion of mediation

  • carefully review the content of the mediation agreement to ensure that it is in line with its own interests and legal requirements.
  • Require the court to make a mediation statement, which will take effect after being signed by both parties.
  • If the other party fails to comply with the mediation letter, it may apply to the court for enforcement.

4. Response to unsuccessful mediation

  • organize the evidence and legal basis required for the trial.
  • Prepare debate opinions on focal issues such as emotional breakdown, property division, child support, etc.
  • If necessary, entrust lawyers to participate in the trial.

5. common mistakes

myth 1: "I can directly ask the court to hold a court session without mediation"

not exactly right. Although the law provides that the parties may refuse to mediate, in practice, the court usually still organizes mediation in accordance with the procedure, especially the pre-litigation mediation stage. The parties may express their disagreement with the mediation, but they need to wait for the court to complete the relevant procedures.

Myth 2: "Mediation is the judge's persuasion and not persuasion to leave"

error. Mediation includes not only "mediation and reconciliation", but also "mediation and divorce". If both parties agree to divorce, the court can close the case through mediation and issue a divorce mediation document, which is often more efficient than the judgment.

Myth 3: "What you promise casually in mediation can be repented of later"

error. The agreement reached in the process of mediation has legal effect after the mediation statement is made by the court and signed by both parties, and can not be reversed at will. Therefore, commitments made in mediation must be made with caution.

Practical Experience of 6. Lawyers

when filing for divorce, the court should first conduct mediation, which is a procedural requirement, but the parties have the right to refuse mediation. Many people mistakenly think that since mediation should be carried out, mediation must be transferred all the way to success. In fact, mediation runs through the whole process of divorce proceedings and may occur before and after filing the case and in court hearings. If mediation fails, the court will make a judgment according to law. Understanding this, when the parties are faced with a mediation plan that they are not willing to accept, they know that they can not only cooperate passively, but can choose to refuse and request a court hearing to take the initiative back.

Mediation is also an opportunity in itself and can save time if used well. It can first determine the parts that can be negotiated, such as the division of property, the arrangement of upbringing and the way of visiting. The mediation statement issued by the court is as enforceable as the judgment, and the other party can directly apply for enforcement if it fails to perform afterwards. Therefore, on the issue of making room for maneuver, we might as well operate mediation as a negotiation channel and think clearly what we can make and what we must hold on. For matters that are indeed very different, they will make it clear that they will not accept mediation and will be referred to the court.

There are two pits to watch out. First, the other party has repeatedly delayed the mediation process and exchanged time for mediation. At this time, mediation can be refused and the court session can be held as soon as possible according to the situation, so as not to let the procedure become the tactics of the other party. The second is to sign clauses that are unfavorable to oneself in order to cooperate with mediation. The results of mediation are also binding, and there is little room for repentance afterwards. Therefore, every mediation plan must be weighed as a formal plan. Especially in the case of domestic violence or serious confrontation, safety and efficiency often take precedence over the form of mediation, and the refusal is rejected without force.