让调解回归本位——日本家事调停制度的特色与镜鉴

Let Mediation Play Its Original Role: Characteristics and Reference of Japanese Family Mediation System

为适应家事纠纷的特殊性,促成当事人自律地解决纷争,日本确立了家事调停制度。该制度在调停优先、调停程序与审判程序连续性运作、自律与他律并重、调停委员的非职业化与辅助人员的专业化等方面颇具特色。以邻为鉴,家事案件的解决应以人际关系的恢复为中心,而不是以结案方式为中心。让调解回归本位,确立家事纠纷调解的优先性、处理好调解程序与诉讼程序的关系、实现自律和他律的平衡、理性对待调解主体的多元化是我国家事调解发挥制度机能的前提。

To adapt to the particularity of family disputes and promote to settle the disputes by the parties,family mediation system has been established in Japan. This system is characteristic of mediation priority,successive operation between mediation procedure and trial procedure,the coordination of autonomy and heteronomy,non- specialized mediators and specialized assistant staffs. Referring to the Japanese system,the settlement of family dispute cases should be focused on interpersonal relation recovery,instead of being centered on the way of cases closure. The premise of China's family mediation playing its systematic function is to promote mediation playing its original role,to establish mediation priority in family disputes,to deal with the relation between mediation and litigation,to realize the balance between autonomy and heteronomy,and to rationally treat the diversity of mediation subjects.