论双向度的“诉调对接”机制及其建构

On the Bidirectional Mechanism of Litigation-Mediation Docking and Its Construction

"诉调对接"是近年来人民法院倡导建立的化解社会矛盾纠纷的工作机制。法学界对于"诉调对接"工作机制的界定存在分歧。不论是从字面含义,还是从产生背景,抑或是从实践表现来考察,"诉调对接"都应界定为诉讼和调解的双向度对接。诉讼支持衔接调解的机制包括诉讼费用的激励和惩戒、调解协议程序法效力的确认以及当事人适时审判请求权的赋予;调解为诉讼分流的机制涵盖了调解在司法程序中的转介适用、延伸适用和强制适用等多种扩大调解适用的举措。在世界上一些国家和地区出现的混合程序将诉讼和调解两种特质融为一体,诉调的相互支持、协调和融通达到一个新的高度,值得中国加以借鉴。

＂Litigation-mediation docking＂ is a working mechanism advocated and established in recent years by people＇s courts to resolve social conflicts and disputes. There exist differences among the jurisprudential circle in defining the working mechanism of ＂ litigation-mediation docking＂ . Whether from the literal meaning, or from the background, or from the practice to examine its per- formance, ＂litigation-mediation docking＂ should be defined as the bidirectional docking between liti- gation and mediation. The mechanism of supporting and connecting mediation with litigation consists of the incentives and disciplinary actions on litigation costs, the confirmation of the effectiveness of the procedural law for the mediation agreement and the entitled right to the parties requesting a time- ly trial. As a mechanism to shunt litigation, mediation covers a variety of measures to expand media- tion application in judicial proceedings, including referral application, extension application and manda- tory application. In some countries and regions around the world, there appears the mixed process that fuses the two special qualities of litigation and mediation together as one, the mutual support, coordi- nation and convergence between litigation and mediation has reached a new height, it is worthwhile for China to learn from them.