What is the purpose of mediation in Ningbo court? How to solve the problem of the judge's persuasion to withdraw the lawsuit

After filing a divorce, the judge or mediator advises you to "think again" and "withdraw the lawsuit and make peace". Should you listen to it or not? Many people fall into a dilemma: if you don't listen, you are afraid of offend the judge; if you listen, you are afraid of missing the opportunity to solve the problem. To make a rational judgment, we must first understand the operation logic of court mediation-the purpose of court mediation is to decide according to the circumstances of the case, not necessarily to persuade. The goal of mediators presiding over mediation is to "bring the case to a close". As for the way to settle the case, whether to make up or divorce depends on the direction of the case: if you feel that mediation is easier, do a good job of reconciliation; If you feel that it is more feasible to mediate divorce, do divorce mediation. In Ningbo, the proportion of family cases settled through mediation is high-according to the Ninghai Court Family Trial White Paper (China Ningbo Net 2023-06-03), the proportion of divorce cases settled through mediation reached 77.6 percent in 2020-2022. Only by understanding the position and motivation of mediation can we not be "biased" and express our demands in place.

The System Orientation and Operation Logic of 1. Court Mediation

mediation is one of the basic principles of civil procedure in China. Article 9 of the "the People's Republic of China Civil Procedure Law" stipulates that the people's courts shall conduct mediation in accordance with the principles of voluntariness and legality in the trial of civil cases; if mediation fails, a judgment shall be made in a timely manner. Because of the particularity of the identity relationship and emotional entanglement in family cases, both laws and policies emphasize the priority of mediation-the Supreme People's Court's opinion on deepening the reform of family trial methods and working mechanisms is clear. Family cases should focus on mediation, repair relationships, and resolve conflicts. Divorce cases should be mediated first.

Understanding the position of the mediator is the prerequisite for the rational response of the parties. The work goal of the mediator (including the mediation presided over by the judge and the mediation organization appointed before the lawsuit) is to facilitate the procedural settlement of the dispute on the premise of voluntary and legal-for the mediator, "successful mediation" means that the case is ended in procedure, and both reconciliation and divorce are "successful. Therefore, the direction of mediation is determined by the circumstances of the case: if the emotional foundation of the two parties is fair and the contradiction stems from a temporary conflict, the mediator will try to reconcile; If the relationship has indeed broken down and continued maintenance will only deepen the harm, the mediator will guide the two parties to reach an agreement on the terms of divorce. If the parties feel that the direction of mediation is inconsistent with their own demands, the most effective way is not to confront passively, but to clearly express their determination and bottom line to the mediator-what the mediator needs is a "settlement plan". The clearer you express it, the more likely the mediation plan will be close to your demands.

Why did the 2. judge persuade to withdraw the lawsuit and persuade to make peace?

In reality, it is not uncommon for the judge to persuade the plaintiff to withdraw and make peace. Only by understanding the reasons behind it can we judge whether we should "listen to advice". There are three common causes:

1. insufficient evidence, can not be sentenced: the core of the divorce is to prove that "the relationship has indeed broken down". If the evidence is not enough to support (for example, if you claim separation but can't produce evidence of "separation for two years due to emotional discord"), even if the court holds a judgment, it will be difficult for the court to judge the divorce-after the first prosecution is not allowed to divorce, it will take six months to prosecute again, which is more costly. At this time, persuading to withdraw and make up is objectively helping you avoid a lawsuit that is "doomed to lose.
2. There is a real possibility of reconciliation: the judge found through trial and mediation that the contradiction between the two sides is mainly due to impulse or external factors, and the emotional foundation still exists, so he will give priority to reconciliation work. There are such cases in the public judgment of the Ningbo Court-in the divorce dispute between Wang and Han, the two parties have lived together for more than 20 years and have six children. Although the defendant is serving his sentence, the court still finds that there is a possibility of reconciliation and rejects the divorce request.
3. Case management pressure: In a few cases, judges tend to persuade to withdraw the case and persuade mediation due to consideration of case management factors such as case closing rate and trial limit. This kind of "simply want to close the case as soon as possible" situation in the judge group is very low, but the parties should know-once the mediation letter is signed, it will take effect, its effect is the same as the judgment, can not be lightly signed.

On the whole, if you really want to divorce and the evidence is sufficient, it is not recommended to withdraw the lawsuit easily-if there is no new situation or new reason after withdrawing the lawsuit, no further prosecution shall be carried out within six months, which will consume time in vain; If the evidence does have a short board, the rational choice is to sue after obtaining additional evidence, or to carefully evaluate the mediation plan, rather than being "persuaded" in unwillingness ".

Strategies and Bottom Line of 3. Parties in Mediation

it is the correct attitude of the parties to regard mediation as a "procedure for striving for interests" rather than a "process at the mercy of others. Specific recommendations:

1. clearly express the determination to divorce: in the mediation, directly and clearly explain to the mediator that "the will to divorce has been determined", and state the facts and evidence supporting the breakdown of the relationship, so as to prevent the direction of mediation from being led to unnecessary and good temptation.
2. Highlight the core demands and bottom line: the ownership of child custody, the amount of maintenance, the plan for the division of property, think clearly about the acceptable scope in advance, negotiate around the bottom line in mediation, and avoid being influenced by emotions on the spot.
3. First, self-assessment of evidence: check the evidence against the legal situation in article 1079 of the civil code-if it can prove bigamy, cohabitation, domestic violence, separation for two years, etc., the judgment of divorce can be more confident and the mediation can be more leisurely; If the evidence is insufficient, either the evidence shall be supplemented or the mediation plan shall be taken seriously.
4. Treat the mediation statement with caution: the mediation statement will have legal effect after being signed by both parties, has the same enforcement power as the judgment, and cannot be appealed. Before signing, be sure to check the statements of child support, property division and debt commitment one by one, and confirm that there are no omissions and no ambiguity.
5. Keep a record when there is doubt about persuading to withdraw the lawsuit: you can state your position in writing to the judge in charge and keep a communication record.

The Procedural Connection between 4. Mediation and Judgment

judging from the procedural process, divorce cases usually enter pre-litigation mediation (mediation is appointed or the court's family mediation room is appointed to preside over). If mediation fails, the case will be transferred to the litigation procedure. In the litigation, the judge will still preside over mediation, and if mediation fails, the court will hold a judgment. There are three main ways of successful mediation: mediation and reconciliation (the plaintiff withdraws the lawsuit or the court issues a mediation and reconciliation mediation letter), mediation and divorce (a package settlement on divorce, child support, and property division, the court issues a mediation letter), and mediation withdrawal (the plaintiff withdraws the lawsuit after the parties reach an agreement). Either way, it should be noted that the content of the mediation agreement must not violate the mandatory provisions of the law and must not harm the interests of third parties; if the division of property is involved, the specific property and performance time must be specified in the agreement to prevent future enforcement from being unfounded.

5. to talk mediation into its own plan: four operational points

mediation is not a process of "passive acceptance of arrangements", but a process of "active pursuit of solutions", and four operational points can help you bring mediation closer to your goals:

first, the bottom line is first and flexible. Before mediation, the appeal is divided into "bottom line" and "transferable" two layers: child custody, core property (self-housing, main deposit) is usually the bottom line, visiting arrangement, fine items, payment rhythm can be flexible. When negotiating, first light the bottom line, then talk about flexibility, to avoid coming up with all the concessions.

Second, let the plan fall on paper and make the promise executable. Verbal agreement does not count-the mediation agreement must be written one by one: the time and cost of the property transfer, the amount of maintenance and the payment account, the details of the debt commitment, the specific frequency and manner of visitation. Use the sentence pattern of "who, when, what to do, and the consequences of not doing it" to test whether each article is enforceable, and try to replace the vague expression ("as soon as possible", "appropriate" and "within a reasonable range") with a certain time and amount.

third, beware of emotional coercion in "persuasion and peace". Mediators sometimes persuade reconciliation or concessions on the grounds of "for the sake of children" and "many years of feelings". If the divorce decision has been made, mediators will gently but firmly reiterate their position, and at the same time express their willingness to make reasonable arrangements for children's upbringing and visitation-to separate "unwilling to make reconciliation" from "willing to be good for children", thus keeping the bottom line and not losing room for communication.

Fourth, pay attention to the implementation of safeguards. No matter how perfect the mediation plan is, the other party's failure to perform is also empty. Involving a one-time large payment, strive to agree in the agreement overdue liquidated damages and clearly enforceable; Involving installment payment (maintenance, discount), agreed overdue consequences; Involving real estate, equity transfer, clear processing time limit. The mediation letter itself is enforceable, and if the other party repents afterwards, it may apply directly for enforcement without separate prosecution.

The Application of 6. Pre-litigation Mediation and Online Mediation

mediation does not always take place on the court bench. There are at least three levels of mediation channels for divorce disputes: the first level is the people's mediation-the people's mediation committee for marriage and family disputes, and the community (village) mediation organization presides over the mediation. After successful mediation, the enforcement power can be given through judicial confirmation, with low cost and no harm to harmony. The second level is the court's pre-litigation mediation (appointed mediation)-the court appoints a specially invited mediation organization or family mediator to mediate before filing, if it is unsuccessful, it will be transferred to the case for trial. The third layer is mediation in litigation-the judge presides over mediation before and after the hearing. Ningbo is rich in pre-litigation mediation and family mediation resources. Courts in Ninghai, Yuyao and other places have family mediation rooms, round-table courts and a family investigator system. Parties can participate in online mediation through "People's Court Online Service (Zhejiang)" (Mobile Micro Court), and parties in different places can also negotiate remotely.

There are three tips for using mediation channels: first, the mediation period is relatively loose but there are boundaries-mediation before litigation is generally about one month, which can be extended with the consent of the parties. If the other party obviously delays (consuming time and transferring property in the name of mediation), it should promptly request to transfer to litigation proceedings and apply for property preservation at the same time to prevent "mediation from dragging down litigation"; Second, the mediation plan can be subject to conditions-for example, "if the other party cooperates with the transfer of ownership before x, it will be performed according to the agreement, and if it fails, it will be handled according to another plan", thus transforming uncertainty into an enforceable ladder arrangement; Third, the statement in mediation should be cautious-although self-admission in the mediation process does not naturally constitute adverse evidence in litigation, the statement involving key facts such as property and fault may still be recorded, when it comes to matters of principle, we should not give in casually for the sake of seeking "harmony. To make good use of the "speed" of mediation, it is also necessary to guard against the "delay" of mediation ".

7. FAQ

the judge advised to withdraw the case, withdraw or not withdraw.

Ask the reason first. If the evidence is insufficient and there is no hope of divorce, it is a pragmatic choice to withdraw the lawsuit and wait for supplementary evidence. If you really want to divorce and the evidence is sufficient, it is not recommended to withdraw-you cannot prosecute again within six months without new circumstances and new reasons after withdrawing the lawsuit, and the time cost is high. The judge may be requested to state the specific reasons for persuading him to withdraw the case before making a decision.

The mediator has been persuading me to make up. What if I don't want to make up?

Clearly express your determination to divorce and state the facts and evidence of the breakdown, in writing if necessary. The goal of the mediator's job is to "bring the case to a close", and reconciliation is not the only option; the more clearly you express it, the more likely it is that mediation will turn to negotiation of the terms of divorce.

What is the difference between a conciliation statement and a judgment?

The mediation statement is based on the voluntary agreement of the parties and confirmed by the court, and the judgment is the result of the court's decision in accordance with the law. Both are enforceable; the difference is that the conciliation statement cannot be appealed and is based on "mutual consent", with little room for estoppel. Be sure to check the contents one by one before signing the mediation agreement.

How long can I sue again after withdrawing the lawsuit?

If the plaintiff in a divorce case withdraws or withdraws the lawsuit, if there is no new situation or new reason, he shall not sue again within six months (cf. the provisions of the Civil procedure Law on the time limit for re-prosecution after the divorce is not allowed); if there are new circumstances and new reasons (such as domestic violence, transfer of property, etc.), the other party may not be subject to this restriction.

What if the other party signs the mediation agreement but does not fulfill the terms of the mediation?

Direct application for enforcement. The mediation agreement will take effect upon receipt by both parties and has the same enforcement power as the judgment. If the other party fails to perform according to the mediation agreement (if it fails to pay the discount on time or cooperate with the transfer of ownership), it may apply to the court that made the mediation agreement for enforcement. The court will inquire to freeze its property, withhold money or force the transfer of ownership according to law, and there is no need to sue again. In order to avoid disputes over performance, before signing the mediation agreement, ensure that the terms state the enforceable elements such as amount, duration and account.