Insights

Key Skills of Divorce Mediation in Ningbo

Ningbo Author：LuXu WANG

Does divorce have to go to court? In fact, mediation is often better. The conclusion starts with: mediation is the first priority in divorce proceedings-the Civil Code stipulates that the court should mediate in divorce cases first; if the two parties can reach an agreement on property, children, and debts, the court issues a mediation statement, which has the same legal effect as the judgment, and cannot be appealed., More flexible and more private. Mastering the three skills of "complete property list, details of children's arrangement and compromise" can significantly reduce the cost of confrontation. This article explains the doorway of mediation once and for all.

What is 1. mediation: not "persuasion and not separation", but an enforceable agreement

many people mistakenly believe that court mediation is "persuading peace not to divorce". In fact, mediation in divorce proceedings is a legal procedure for both parties to reach an agreement on divorce, child support, property division, debt commitment and other matters under the auspices of the court, and to make a mediation statement to close the case. The mediation statement shall have legal effect after being signed by both parties, and shall have the same enforcement power as the effective judgment-if one party fails to perform, the other party may directly apply to the court for enforcement. It solves the problem of "how to leave cleanly", not "whether to leave or not".

Mediation runs through the whole process of divorce cases: pre-litigation mediation (appointed mediation, people's mediation) before filing a case, mid-litigation mediation after filing a case, and the last mediation before judgment. According to Article 1079 of the Civil Code, the people's court shall conduct mediation in the trial of divorce cases; voluntary and legal mediation is the basic premise, and if either party does not agree, the court cannot force mediation. According to practical observation, the follow-up automatic performance rate of cases that can be settled through mediation is significantly higher than that of judgments, and the relationship between the two parties is less likely to move towards "execution of the book".

2. Tip 1: Make a complete list of property and debts first to avoid "talking and popping up new accounts"

mediation is most likely to collapse when one party thinks it is over and the other party throws out "there is still a financial management that has not been calculated". Therefore, before entering into substantive negotiations, it is important to get the plate clear:

  1. real estate: real estate, parking space, registration, loan balance, present value valuation;
  2. deposits and financial management: bank accounts, financial management, funds, stocks, insurance cash value (note: housing provident funds, housing subsidies, etc. during the marriage are also common property);
  3. vehicles and other movable property: vehicles, precious metals, collectibles;
  4. equity and management: limited company equity, self-employed/partnership share, involving the company's property to be sorted out separately;
  5. debt: external loans, receivables, debts incurred by families and personal debts, with the amount, time and documents listed on a case-by-case basis.

The significance of the list is twofold: first, to prevent omission-the common property that is omitted during divorce can still be divided by litigation in the future (article 83 of the (I) for the Interpretation of Marriage and Family Compilation). It is better to talk about it at one time than to leave future troubles. The second is to prevent concealment-one party conceals property in order to reach mediation, after divorce, it is found that it is still possible to request a further division and claim a small or non-division (article 10

92of the Civil Code).

3. skill 2: child support and visitation write clear executable details

the terms of the children's arrangement are too rough and are the first source of wrangling in the future. The mediation document should state as far as possible: who will directly raise the children; The amount of alimony, the method of payment (monthly/quarterly), the date of payment and when to pay; How to share large expenses such as tuition fees and medical expenses for serious illness; The time, frequency, place and handover method of visiting (e.g. receiving every Saturday morning, returning on Sunday night, staying for a period of time during winter and summer vacations), and stating the holiday rotation plan when necessary; the obligation to cooperate with household registration and schooling arrangements. The more specific the details, the smoother the execution, and the more likely it is to avoid the secondary conflict of "using children as chips.

4. Tip 3: Prepare a compromise on key disagreements

the winner and loser of mediation in the design of "concession space. Common compromise ideas include:

  1. discount compensation instead of physical division: the property is owned by one party, and the party compensates the other party for the difference according to the assessed price or negotiated price, which is much more refreshing than "one person with half property rights and jointly held;
  2. installment payment scheme: if the compensation is not paid in one lump sum, the agreed installment and overdue liability may be secured or fixed by the court in the mediation agreement;
  3. the introduction of third-party evaluation: when the two sides are in dispute over the value of the property, they jointly entrust the evaluation agency to set the price and give the "price dispute" to the objective standard;
  4. flexible disposal of complex property: Where a company's equity is involved, an agreement may be made to be held by one party, compensated in instalments, or an agreement to distribute the price after transfer by a third party-such arrangements are more flexible than judgments.

The Boundary of 5. Mediation and the Rule of Repentance: Be aware of it

mediation is not unlimited. First, property cannot be concealed in order to reach mediation, and may be held accountable afterwards; second, the mediation agreement cannot violate the mandatory provisions of the law, cannot harm the interests of minor children, and the disposition of the property of outsiders is invalid; third, the mediation agreement Before being served and signed, the parties can go back on their word, and the court will transfer to the judgment procedure; after signing, the mediation letter will take effect and cannot be appealed. If the mediation agreement is concluded by fraud or coercion, it may apply for a retrial or another case claim in accordance with the law, but the threshold of proof is higher.

We also need to know a "bonus": divorce cases themselves can choose not to be heard in public, and the mediation process is also not open to the public. The online rules of adjudication documents also make non-disclosure exceptions for divorce proceedings and cases involving the upbringing and guardianship of minor children-this is a real protection for parties who are worried about privacy exposure and damage to their corporate image.

The combination of 6. mediation and the identification of property: to prevent "talking about hiding the property"

mediation is premised on the willingness of both parties, but voluntariness does not mean laissez-faire information asymmetry. In practice, it is not uncommon for a party to use mediation to delay time and take advantage of the opportunity to transfer property, so the mediation process should be carried out in parallel with the identification of property:

  1. require the other party to fill in a property declaration form: in divorce proceedings, the court may order both parties to declare their common property, and in the mediation stage, both parties may also be required to complete the declaration before entering into substantive negotiations;
  2. check the ownership certificate: real estate certificate, vehicle registration, equity certificate, policy cash value statement, the original or copy of the negotiation table item by item, to prevent the "oral report" from being inconsistent with the actual situation;
  3. stop loss immediately when signs of transfer are found: if the other party is found to make a surprise transfer or sell at a low price during the mediation period, it may apply for property preservation or request the court to fix an objection in the mediation transcript, terminate the mediation transfer to the lawsuit if necessary and claim that the other party has less points;
  4. for those whose income is unknown, we'll talk about it after we get the running water. If the other party's income affects the amount of alimony and compensation, the salary flow and tax bill shall be obtained through investigation or negotiation, so as to avoid "beating the head" to come up with a plan to go back on our word in the future.

7. Mediation Letter vs Civil Affairs Bureau to Register Divorce: The Choice of Two Routes

many parties struggle with the difference between "going to the Civil Affairs Bureau for divorce" and "mediation after prosecution", the practical differences are worth clarifying:

  1. time Cost: The civil affairs department agrees that divorce must go through a 30-day divorce cooling-off period (Article 1077 of the Civil Code), and both parties must jointly obtain a certificate within 30 days after the expiration of the period. There is no cooling-off period for court litigation mediation. A mediation document can be issued on the spot or within a few days after successful mediation. If it is hoped to be settled quickly, litigation mediation is often faster.
  2. Document validity: the marriage relationship is dissolved after divorce in both ways; However, the Civil Affairs Bureau issued a divorce certificate plus a divorce agreement for filing. If one party fails to perform the agreement in the future, it will still have to sue separately. The court mediation document has its own enforcement power. Failure to perform can directly apply for enforcement without another lawsuit.
  3. Property, debt and the degree of protection of children's arrangements.: The court mediation statement, reviewed by the judge, can avoid hidden dangers left by invalid clauses in the agreement (such as disposing of other people's property and harming the interests of children).
  4. Privacy and cost: the civil registration procedure is simple and the cost is low. Although litigation mediation generates legal fees (the acceptance fee for divorce cases is generally not high, and the settlement fee is halved), the mediation process is not open and privacy protection is more complete.

In a word, it is suggested that if the two parties can negotiate calmly and the property is simple, civil registration is sufficient. If the property is complicated, the other party has a tendency to delay or repent, and needs to be locked in one step, priority shall be given to litigation mediation and mediation.

8. FAQ

is divorce mediation the same as judgment?

The same. The conciliation statement issued by the court and the judgment have the same legal effect and can be used as the basis for enforcement; the difference is that the conciliation statement takes effect upon receipt by both parties and cannot be appealed, and the judgment has an appeal period and a second instance procedure.

What is the use of a property list when mediating?

Avoiding omissions and repetitions is the basis for achieving an executable solution. The more complete the list, the less risk of subsequent "new accounts" and separate litigation.

Is mediation not public? Will it affect children?

Divorce cases can be tried in private, and mediation can also be conducted in private to protect the privacy of the parties; if minor children are involved, the court will try to avoid letting the children face parental conflicts in court. Mediation is usually less harmful to children than adversary trials.

What if mediation fails?

The court continues to hear the case and makes a judgment in accordance with the law, and the failure of the mediation will not affect the litigation rights. If the mediation fails before the lawsuit is transferred to the case, if the mediation fails in the lawsuit, the trial will be resumed, and the procedure will not suffer from the "failure to negotiate.

What if the other party says a good plan in the mediation and turns around and goes back on its word?

Mediation is subject to transcripts and conciliation statements, and oral commitments are not binding. The key is to record each consensus on the spot and confirm it by the mediator to form a mediation record. If a mediation document can be issued on the same day, it will be signed on the same day, and the space for repentance will be locked.

Practical Experience of 9. Lawyers

mediation is not to listen to the judge's persuasion. Its real function is to write down a plan that can fall to the ground. With this understanding, the first thing to do is to prepare a complete list of property and debts: house, car, deposit and financial management, equity, provident fund, external creditor's rights and debts, and write down the registration status, approximate present value and who has the certificate. The significance of the list is not only to prevent missing points, but also to prevent the other party from suddenly throwing out an uncalculated account in the middle of the negotiation, disrupting the rhythm. Before the list is finished, we are in a hurry to talk about the conditions, often talking about returning to the original point.

Whether the mediation agreement can be implemented depends on whether the terms are written in detail, especially the children. The alimony only writes the amount, does not write the time and method of payment, and only writes the visit at any time, does not write the frequency and handover place, which are all future pits. The pragmatic writing is to fill in the executable details: the date of each month, which account to call, how to share large amounts of education and medical care, how to arrange winter and summer vacations, and where to transfer. The property part also falls into operational actions, such as who owns a suite, when to cooperate with the transfer, who will continue to repay the loan, and how to deal with the overdue. The more you write like a list of operations to be performed, the less friction you will have in the future.

Mediation can be achieved by preparing compromise solutions on key differences, rather than on issues of principle. Before entering the arena, think clearly about your upper and lower limits, which must be contested and which can be exchanged. The other party cares most about the child or the house, and often decides what you exchange. At the same time, several lines should be kept: during the negotiation, it is not necessary to show the property card all at once. The process of negotiation and the attitude of the other party may become the material of future litigation, so don't expect to put soft words before asking for conditions. If the mediation fails, it will not affect the court to continue to hear the judgment. If you have a bottom in your heart, it will be more stable to talk about it.

The key to divorce mediation lies in the three-piece set of "list, details of children and compromise plan": the list finds out the family background to prevent omissions, the children's terms are written in detail to prevent wrangling, and the compromise plan leaves room to promote the transaction. Mediation is equivalent to judgment and cannot be appealed. Early mediation and less confrontation are lower cost options for property, children and themselves. It is recommended that the materials be prepared before formal negotiations-proof of property ownership, proof of debt, proof of income, child expense documents, and fixed item by item in the negotiations to avoid the failure of verbal commitments.