Does Ningbo divorce case have to be mediated? Can I not go after receiving the notice?

Should divorce cases be mediated first? After receiving the mediation notice from the court or the mediation center, can we not go? Conclusion First, "mediation" is a legal link in divorce proceedings-Article 1079 of the Civil Code clearly stipulates that people's courts should conduct mediation in divorce cases; and before filing a formal case, most courts will arrange pre-litigation mediation first, and if mediation fails, then file a case for trial. It is not illegal to "not go" after receiving the mediation notice, but it is suggested to be present in practice: the mediation window period is not only an opportunity to understand the real demands of the other party, but also may bring practical benefits of fee reduction and faster closing of the case. This article makes clear the nature, process, cost and attendance strategy of mediation.

Mediation of 1. Divorce Cases: Statutory Procedures, Throughout Pre-litigation and in-litigation

1. Legal basis. The first paragraph of Article 1079 of the Civil Code stipulates: "If one of the spouses requests a divorce, the relevant organization may mediate or directly file a divorce lawsuit with the people's court. In handling divorce cases, the people's court shall conduct mediation; if the relationship has indeed broken down and mediation is invalid, the divorce shall be granted. "It can be seen that" mediation should be carried out "is the legal procedural requirement of the people's court to hear divorce cases, the purpose of which is to repair the marriage relationship as far as possible, or to facilitate the two parties to reach an agreement on the maintenance of children and the division of property, so as to reduce confrontation.

2. There are two stages of pre-litigation mediation and mediation in litigation. In practice, mediation is divided into two stages: first, pre-litigation mediation (appointment of mediation) before filing the case. After the court receives the prosecution materials, it is generally transferred to the litigation mediation docking center (pre-litigation mediation center), and the mediator organizes mediation before filing the case; The second is the mediation in the lawsuit after filing the case, which is presided over by the judge in charge during the trial. If the two stages of mediation are successful, there is no need to go through the complete judgment procedure.

3. The general process and duration of pre-litigation mediation. Comprehensive working rules of litigation and mediation docking in various places: after receiving the case materials transferred by the people's court, the litigation and mediation docking center generally appoints one or more mediators to mediate within three days; The period of mediation before litigation is generally 30 days, starting from the date when the private prosecution docking center or mediator signs for the materials handed over by the court, the extension agreed by both parties can be extended, and the maximum is generally not more than 60 days. During the mediation period, if the parties clearly state that they do not agree to continue the mediation, the mediation procedure shall be terminated and the case shall be transferred to the case for trial. It should be noted that the refusal of pre-litigation mediation does not affect the right of the parties to file a lawsuit in accordance with the law, and the court cannot refuse to file a case on the grounds that "mediation must first.

Mediation must be voluntary and legal. Regardless of the pre-litigation or in-litigation mediation, the principles of voluntariness and legality must be adhered to: one party may not force the other party to accept mediation; the content of the mediation agreement must be reached by both parties on the basis of voluntary consultation, and must not violate the mandatory provisions of the law, and must not harm the state, the collective and The interests of third parties.

Can the 2. not be present after receiving the mediation notice: yes, but it is recommended to be present.

Can't you go? Yes. Mediation is based on voluntariness, and the parties have the right to refuse mediation or not to attend mediation activities, and the court cannot impose adverse consequences on them. But "can not go" and "suggest to go" are two different things, not to the field will lose at least three things:

1. opportunities to understand the true claims of the other party: The other party's offer, bottom line and concerns will be exposed in advance in the mediation, and this information has direct value for subsequent litigation strategies.
2. The opportunity to express one's own plan at low cost: telling the mediator or judge directly about one's own thoughts on the upbringing of children and the division of property is much more active than showing the cards for the first time after the court session, and it also helps the judge to form the first impression of the case.
3. The cost and efficiency dividend of mediation settlement: the success of pre-litigation mediation is often accompanied by the reduction of litigation fees, and the closing speed is much faster than the court judgment.

Of course, if the other party is obviously insincere and only wants to delay the time through mediation, it can also be present to show its position and request to be transferred to the case for trial as soon as possible, and the court will schedule the hearing according to law. Being present or not is a strategic choice, not an assignment of obligations, but it is usually not in your interest to "go in anger.

The economic account of 3. mediation: the rules of fee reduction are clear at once.

The advantages of conciliation in terms of costs have clear rules to follow:

1. if the mediation before the lawsuit is successful and the application for withdrawal of the lawsuit is made: if the party concerned applies to the court for withdrawal of the lawsuit, and the court rules to approve the withdrawal of the lawsuit, the case acceptance fee shall be exempted.
2. Successful pre-litigation mediation, request the court to issue a civil mediation letter. If the amount of the litigation subject is less than 50000 yuan, the case acceptance fee shall be exempted; If the amount is more than 50000 yuan, the case acceptance fee shall be charged at a 1/4 not higher than the prescribed standard.
3. Benchmark for acceptance fees for divorce cases: Article 13 of the Measures for Payment of Litigation Costs stipulates that 50 yuan to 300 yuan shall be paid for each divorce case. Involving the division of property and the total amount of property does not exceed 200000 yuan, no separate payment shall be made; The part exceeding 200000 yuan shall be paid at 0.5.
4. Cost burden: Article 33 of the measures for the payment of litigation costs stipulates that the burden of litigation costs in divorce cases shall be settled by both parties through consultation; if the negotiation fails, it shall be decided by the people's court.

In contrast to the above rules: the basic acceptance fee for divorce cases is not high, if the total amount of property is large, go to mediation and request the issuance of a civil mediation, can significantly save the 0.5 per cent of the cost of property division-the higher the total amount of property, the more obvious the cost advantage of mediation.

The Legal Effect of 4. Mediation Results: Mediation and Judgment Equal Effect

many of the parties concerned are worried about "whether mediation does not count", which is a misunderstanding:

1. the civil mediation letter confirmed and issued by the people's court shall have the same legal effect as the judgment and shall be implemented by both parties.
2. If one party fails to perform the obligations determined in the mediation agreement, the other party may directly apply to the court for enforcement without a separate lawsuit.
3. If a pre-litigation mediation agreement is reached and the content needs to be implemented, the two parties may jointly apply to the basic people's court where the mediation organization is located for judicial confirmation within 30 days from the effective date of the mediation agreement, and the court shall confirm the validity of the mediation agreement that meets the conditions and give enforcement effect.
4. Once the mediation agreement comes into effect, the parties cannot sue again for the same dispute except for legal circumstances such as fraud and coercion. Therefore, before signing the mediation agreement, it is necessary to check whether the child support, property division and debt handling are fully written and written.

Special attention should be paid to: the mediation agreement must specify all matters such as child support (including visitation arrangements), property division (including real estate, vehicles, deposits, equity), debt treatment (including external debt commitment and recovery), etc., to avoid "mediation and settlement of cases, and subsequent troubles". Procedural nodes such as property declarations and cooling-off periods should also be synchronized in mediation to prevent omissions.

5. Mediation Negotiation Practice: Three Types of Core Matters

the core value of mediation is not "end quickly", but to talk clearly about the rights and obligations after divorce. The three most controversial types of matters in practice are as follows:

1. Child support. First determine the ownership of custody-the bottom standard judged by the court is to maximize the interests of children, and the wishes of children over the age of eight, the ability of both parties to raise and the conditions of residence and education are the main considerations; Then set the maintenance fee-referring to the spirit of the Supreme People's Court's opinion on child support in divorce cases, the party with fixed income can generally pay the maintenance fee according to the proportion of 20% to 30 of his monthly total income, for those who bear more than two children, the 50% income can be appropriately increased but generally does not exceed the monthly total income. Specifically, the income of both parties and the actual needs of the children shall be negotiated. The agreement is also valid if the proportion is higher than the proportion. The final visit-visit time, frequency, transportation method, winter and summer vacation arrangements should be specified to avoid implementation disputes caused by the vague clause of "visit once a week.

2. Division of property. First make a full list (real estate, vehicles, deposits, equity, insurance, provident fund, financial management itemized), then talk about the valuation caliber (negotiated price, appraisal price, market price), and then talk about attribution and compensation. Real estate is concerned about the feasibility of residual loans and transfers, equity is concerned about control and people, deposit insurance is concerned about cash value and liquidity, compensation is stated in the amount, payment time and overdue default liability, can be paid in installments of the agreed mortgage or guarantee is more secure.

3. Debt treatment. The marital debt is listed on a case-by-case basis, distinguishing between common debt and personal debt, stating the internal commitment scheme, while retaining the right of external recovery-internal agreement does not break external claims, after compensation by agreement to recover.

In terms of negotiation strategy, it is suggested that "easy before difficult, bottom line before bright, whole process should be written": first confirm undisputed matters to build trust, then tackle core differences; Leave room for concessions and not show all the bottom line at once; Any oral consensus will be implemented in the text of the mediation agreement and signed after word-for-word verification. Emotional negotiation site is the easiest to sign a "muddled agreement", if necessary, apply for suspension, another day to talk, or by the mediator organization back-to-back communication.

Before signing the mediation agreement, it is suggested to check the list against the five checks: first, check the subject-the information and ID numbers of both parties are correct; Second, check whether the child support, visit, property and debts are fully covered, and whether there is a general waiver clause of "no longer claiming other matters"; Three check amounts-the amounts of compensation and alimony are consistent with currency and case, and the payment time and account number are clear; four check performance-involving transfer, relocation, payment of compensation, specify the period of performance and overdue liability for breach of contract, it is best to agree to bind the delay party with liquidated damages. If you pass the five checks and sign them, the mediation letter can become the final document of the "one-time settlement", rather than the starting point of the next dispute.

6. common mistakes

myth 1: Mediation is the court "and mud", the mediator toward each other. Positive solution: the mediator presides over the neutral, the goal is to promote a plan acceptable to both parties and legal; If the mediation plan is obviously unfavorable, it is entirely possible to refuse to sign it and transfer it to the case for trial. There is no mandatory result for mediation.

Myth 2: If you don't participate in mediation, the case will be shelved or unfavorable to yourself. Positive solution: if you refuse or fail to attend the pre-litigation mediation, the case will be transferred to the formal filing for trial; Not being present will not directly lead to losing the lawsuit, but will lose the aforementioned communication and expense bonus, and may also lead to poor delivery of subsequent documents due to unconfirmed delivery address.

Myth 3: There is no "hard" judgment in the mediation statement ". Positive solution: The civil mediation statement confirmed by the court has the same legal effect as the judgment, and can be applied for enforcement; the mediation agreement confirmed by the judiciary also has enforcement power.

Myth 4: Promise the mediation plan first, and then go back on your word later. Positive solution: The mediation agreement shall take effect after the court confirms the issuance of the mediation letter, and the repentance shall have legal reasons such as fraud, coercion and other legal reasons and relief through legal procedures, and shall not be overturned at will.

7. FAQ

I don't want to mediate, can the court force me to mediate?

Can't. Mediation adheres to the principle of voluntariness, and you have the right to refuse mediation or not to attend mediation activities. If the pre-litigation mediation is refused, the case will be transferred to the case for trial; the court will also conduct the mediation on the basis of the willingness of both parties and will not force an agreement to be reached.

How long does it usually take to mediate before litigation? What if there is no result for a long time?

The pre-litigation mediation period is generally 30 days, which can be extended by mutual consent, usually not more than 60 days. If there is no progress beyond the reasonable time limit, it may be reflected to the mediation center or the filing court and requested to be transferred to the case for trial, so as to avoid indefinite delay.

Should we show all the cards in mediation?

It is suggested to express it strategically: before understanding the other party's demands and the court's mediation caliber, it is not necessary to show all the bottom line at once; However, claims involving core matters such as child support and real estate should be clearly put forward in the mediation and written into the agreement to avoid losing the initiative after the court session.

Mediation success to get a mediation letter, the other party does not perform?

Apply directly to the court that made the conciliation statement for enforcement. The payment obligations (payment of compensation, cooperation in transfer, payment of maintenance, etc.) determined in the mediation letter can be used as the basis for enforcement; if they refuse to perform, the court may take enforcement measures such as freezing, sealing up, and inclusion in the list of dishonest.