法院调解自愿原则的实现路径

The Realization Path for Voluntary Principle of Court Mediation

学界关于法院调解自愿原则的理解是调解启动上和调解协议的达成上均应确保当事人自愿。但在司法实践中,法院调解在调解方式的启动、调解协议的达成以及调解协议的履行方面均难落实自愿原则。其要因是,法院调解的发展受司法政策的过度影响,且学界对自愿原则的理解尚未探及当事人的心理层面。结合法院调解的司法实践,落实自愿原则应贯彻"当调则调,当判则判"之司法规律。法官对适宜调解的案件在采用调解方式时应适度突破"自愿"之禁锢,在调解协议的达成上则应确保当事人的真实意思表达,凸显其自愿。唯有如此,才能真正贯彻落实调解自愿原则。

The understanding of the academic circle about the voluntary principle of court＇s mediation is that the parties should be ensured to be voluntarly on starting court＇s mediation process and reaching mediation agreement. But in judicial practice,the voluntary principle of court＇s mediation is difficult to be implemented. The parties not only can not decide the mediation process but also can not decide the mediation agreement Voluntarily. There are two main reasons for those results. One is that the development of court mediation is affected by the judicial policy seriously. The other is that the academic understanding of voluntary principle hasn＇t reached the psychological level of the parties. In order to implement the voluntary principle,we must take the following measures. First,we must follow the basic rules of justice which is＂Mediation when appropriate,sentence when necessary＂.Second,judges should breakthrough the voluntary principle moderately when they must start the mediation process for some case. Third,we must ensure that the parties are willing to reach a mediation agreement. Only in this way,we can implement the voluntary principle of court＇s mediation really.