调解与判决的选择——基于当事人经济计算角度

The Choice between Mediation and Judgment Based on the Perspective of the Parties' Economic Calculation

调解能节约社会成本,但调解也是有条件的。若当事人审判预期价值的差额小于等于当事人预期诉讼成本之和,那么双方互利的调解值一定存在,但诸多变量和因素都会影响调解的达成。如果双方对原告胜诉可能性的估计一致,或原告相对于被告是悲观的,调解范围就会存在。原告越悲观调解范围越大;反之则调解范围越小甚或消失。其他诸如判决的数额、诉讼成本、当事人的风险态度和掌握信息情况都会影响调解的达成。我国的诉讼费用负担制度也会对调解产生影响,负值诉讼会减弱调解的正面意义。

Mediation will be able to save social costs, but it is also conditional. If the difference of the expected trial value for the parties is less than or equal to their expected litigation costs, the mutually beneficial mediation must exist, but many variables and factors will affect the realization of mediation. If the parties have consistent estimates of possibilities in favor of the plaintiff, or the plaintiff is pessimistic relative to the defendant, the scope of mediation will exist ; if the plaintiff is more pessimistic, the scope of mediation is wider; if the plaintiff is more optimistic, the scope of mediation is smaller or even disappears. Other factors such as the amount of judgment, litigation costs, the risk attitude of the parties and information will affect the realization of mediation. And our country＇s system of the burden of litigation costs will also impact mediation. The negative value suits would weaken the positive significance of mediation.