Insights

Ningbo v. before the mediation did not take long to formally file a case

Ningbo Author：LuXu WANG

After submitting the divorce prosecution materials, many parties thought that the court would open the case immediately, but after waiting for a long time, they were told that the case was still in the "pre-litigation mediation" stage. Pre-litigation mediation is a necessary procedure for divorce cases, and the case can only be formally filed after mediation fails. So, how long does it take to mediate before litigation? How long can a case be filed after mediation fails?

1. legal basis

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.

Opinions of the Supreme People's Court on Further Deepening the Reform of Diversified Dispute Resolution Mechanisms by the People's Courts (Fa [2016] No. 14): The people's courts shall establish a pre-litigation mediation mechanism to guide the parties to choose mediation before registering and filing disputes that are suitable for mediation. The pre-litigation mediation period is generally 30 days. If both parties agree to extend it, it may be appropriately extended, but the maximum is not more than

60days.

Article 126 of the the People's Republic of China Civil Procedure Law: The people's court shall guarantee the right of the parties to sue in accordance with the law. A complaint that complies with Article 122 of this Law must be accepted. If it meets the conditions for prosecution, it shall file a case within seven days and notify the parties; if it does not meet the conditions for prosecution, it shall make a ruling within seven days and shall not be accepted; if the plaintiff is not satisfied with the ruling, it may appeal.

2. core points

1. Pre-litigation mediation is a common pre-procedure in divorce cases.

Divorce cases involve identity relations and family interests, and courts usually organize pre-litigation mediation before filing a formal case. Pre-litigation mediation is conducted by the court's litigation mediation docking center or specially invited mediation organizations, with the aim of resolving conflicts through non-litigation methods and reducing the litigation burden of the parties. Ningbo Intermediate People's Court issued the "Innovative Reform Plan for the Trial of Family Cases" in 2014, taking the lead in launching the reform of family trials in Zhejiang Province, and the application of pre-litigation mediation in Ningbo family cases is more common.

2. The pre-litigation mediation period is generally 30 days, and the longest is not more than 60 days.

The duration of pre-litigation mediation is usually 30 days. If the parties agree to extend, it may be extended appropriately, but the maximum period shall not exceed 60 days. If a mediation agreement is not reached at the expiration of the mediation period, or the parties clearly express their disagreement to continue the mediation during the mediation period, the mediation procedure shall be terminated.

3. After the mediation fails, it shall be transferred to the case in a timely manner.

After the termination of the mediation procedure, the court shall review the prosecution materials. If the conditions for prosecution are met, the case shall be filed within seven days and the parties shall be notified; if the conditions for prosecution are not met, a ruling of inadmissibility shall be made within seven days. If the plaintiff is not satisfied with the decision of inadmissibility, he may appeal to the higher court within

10days.

4. Pre-litigation mediation does not affect the litigation rights of the parties.

During the pre-litigation mediation, the parties have the right to express their disagreement with the mediation at any time and request the court to file a case in accordance with the law. If the mediation fails, the parties may continue the proceedings in accordance with the law, and part of the consensus reached in the mediation can be used as a reference for the court to hear, but it is not enforceable, unless it has been judicially confirmed or made into a mediation statement.

3. boundary conditions

  • different regional courts have different scales of pre-litigation mediation, some courts have a large number of cases, and the pre-litigation mediation and filing cycle may be longer;
  • if the parties explicitly refuse to mediate, the court shall promptly examine whether the conditions for filing a case are met in accordance with the law.
  • The pre-litigation mediation stage generally does not incur litigation fees, and litigation fees are not required until the case is formally filed.
  • If an agreement reached in pre-litigation mediation needs to be enforceable, it should apply for judicial confirmation or the court should make a mediation statement.

4. operational steps

1. Proactive understanding of progress after submission of prosecution materials

  • keep the receipt or material list issued by the court.
  • About 10-15 working days after submitting the materials, take the initiative to contact the court litigation docking center or the filing court to understand the progress of the case.
  • Record the contact information of the mediator or the staff of the court.

2. Clear expression of attitude towards mediation

  • if you are willing to mediate, actively cooperate with the mediator, but do not easily make a commitment beyond the bottom line
  • if you do not agree to mediation or believe that mediation is hopeless, you can make it clear in writing or orally to the court to request that the case be filed as soon as possible.

3. Response to the failure of mediation

  • if no agreement has been reached at the expiration of the mediation period, the court shall be contacted to ask whether the case has been transferred to the case.
  • After receiving the notice of filing a case, pay the legal fees in time according to the requirements of the court.
  • If the court fails to file a case within the statutory time limit and does not explain the reasons, it may report to the higher court or the relevant department.

4. Preparation of follow-up proceedings

  • during the pre-litigation mediation, continue to supplement and improve the evidence materials.
  • Retain evidence when communicating with the other party to avoid self-admission against oneself in mediation.
  • If necessary, entrust lawyers to intervene and formulate litigation strategies

5. common mistakes

myth 1: "Mediation before litigation is to file a case, but it has not yet been held"

error. Pre-litigation mediation is a procedure carried out before the formal filing of the case, and the case has not yet formally entered the proceedings. Only after the court has formally filed a case and issued a notice of acceptance, the case will be circulated in the proceedings stipulated in the Civil Procedure Law.

Myth 2: "Pre-litigation mediation can be delayed indefinitely"

error. There is a statutory time limit for pre-litigation mediation, generally 30 days, up to a maximum of 60 days. If a mediation agreement is not reached after the statutory time limit, the court shall promptly review and decide whether to file a case.

Misunderstanding 3: "Everything you say in mediation can be reversed"

error. Although the statement in the pre-litigation mediation is generally not enforceable, if a claim that contradicts the statement in the mediation is made in subsequent litigation, it may affect the judge's testimony. Therefore, the mediation should also be cautious expression, to avoid adverse self-admission.

Practical Experience of 6. Lawyers

the delay in holding the hearing after submitting the divorce prosecution materials is likely to be due to the fact that the case is still at the pre-litigation mediation stage. This is a common advance procedure in divorce cases. The mediation period is generally 30 days, and the maximum extension agreed by both parties is not more than 60 days. If mediation fails or the parties do not agree to continue mediation, the court shall promptly transfer to the formal filing, and those who meet the conditions for prosecution shall usually file a case within seven days. Therefore, the parties need not be anxious because of the delay in holding the court session. They should first find out which link the case is in and then decide whether to take the initiative to push it forward.

If you want to enter the trial as soon as possible, there are actions to do: you can clearly indicate to the court that you do not agree to continue mediation and request to be transferred to the case in time; If the case has been delayed for too long in the mediation stage and exceeded the legal time limit, you can also take the initiative to inquire about the progress and apply in writing to transfer the case, and report it to the next higher level if necessary. The key is to leave traces of what you have advocated, not just a verbal reminder on the phone. It should be noted that mediation itself is not necessarily against you. If the two sides have little difference, mediation settlement is often faster and more convenient than judgment. Therefore, whether to rush or not depends on your actual situation and the speed you want.

From a strategic point of view, this stage has another use: it leaves a window for negotiation between the two sides. If the other party is actually willing to talk, just because of face or conditions, this period of time can continue to contact, the property and children's plan to grind again; If the other party is obviously delaying through mediation, such as avoiding and repeatedly asking for an extension, then decisively ask for a transfer to the case and don't accompany him. Treat this stage as a link that you can actively adjust the rhythm, rather than a process that can only wait passively, it will be much more leisurely to deal.