“消失中的审判”?——重新认识美国的诉讼和解与诉讼调解

Vanishing Trial?——A new understanding on American settlement and court mediation

＂消失中的审判＂的审判（trial）仅指全面庭审,trial之外还有多种审理和裁判,而即决判决的占比就在7%~20%。因此,trial降到2%并不表明和解升至98%。对实际的和解率有70%和50%二说。美国法官对和解的促进（调解）并未有效提升和解率。美国和解率较高的原因是案件积压严重,trial昂贵,开示程序有助真相呈现。格兰特未倡导和解,甚至认为和解本质上无所谓好坏。美国的和解有较清晰的事实基础,有较广泛的高额惩罚性赔偿为后盾,所以更可能有利于权利人,并仍有较强的阻吓功能。在审判实践中,不仅应提高调解的质量,而且应努力提高督促程序的利用率,以快速、充分地保护权利。

In America, trial commonly means full adjudicatory proceeding. Beside this, there are a variety of hearing and ruling. Summary judgment rate is between 7%-20%. Trial＇s vanishing doesn＇t mean settle- ment＇ s ascending. Actual settlement rate is about 70% or 50%. American judge＇ s promotion hasn＇ t enhanced settlement rate evidently. This high settlement rate may be attributed to excessive case inventory, expensive trial and discovery that help to uncover truth. Marc Galanter didn ＇ t advocate settlement, settlement wasn＇t good or bad in essence in his view. Settlement has good base of fact, and supported by extensive puni- tive damage mechanism, so it is probably more beneficial to obligee, and has intimidating function to obligor. We should enhance quality of settlement, and increase use ratio of the demand proceeding, so that we can protect right rapidly and adequately.