先行调解法治化运行的困境及出路——以H县人民法院为分析样本

The Dilemma and Approach to the Mediation before Filing a Case——A Case Study of H County People's Court

先行调解入法前在司法实践中已经践行,对H县人民法院先行调解的实践进行梳理,不难发现先行调解在司法实践中尚存主体不明、适用范围不清及对当事人权益欠缺相应保障等问题。剖析其原因,主要是先行调解的性质不明,当事人对先行调解制度的认同度低,以及法院片面追求高调解率等体制痼疾所致。明确先行调解制度的性质,探索合理运行模式,在制度运行中切实保障当事人的合法权益,并建立合理的司法绩效考评体系,不失为先行调解制度法治化运行的有效路径。

As we all know , the mediation before filing a case has existed in judicial practice before it was regulated by law . Examining the judicial practice of the people＇s court of H county , we found that there are many problems of this mediation . For example , the legal subject is unidentified , the scope of application is unclear , the litigants＇rights could not be guaranteed correspondingly and so on . In fact , there are three major causes for those problems . First , the nature of mediation before filing a case is ambiguous . Second , the litigants aren＇t likely to be sympathetic toward this mediation . Third , a lot of courts lay one -sided emphasis on high rate of mediation which has been a problem in judicial system . In order to make the mediation before filing a case operate effectively , it is necessary to define the nature of mediation before filing a case , explore a appropriate operation mode , guarantee litigants＇ rights , establish a reasonable performance assessment system in judicial practice and so on .