Certain Opinions of the Supreme People's Court on Further Implementation of the Principle of “Mediation First and Combined Approach Mediation and Adjudication”

最高人民法院关于进一步贯彻“调解优先、调判结合”工作原则的若干意见

Promulgating Institution: Supreme People's Court

Document Number: Fa Fa [2010] No. 16

Promulgating Date: 06/07/2010

Effective Date: 06/07/2010

颁布机关: 最高人民法院

文    号: 法发[2010]16号

颁布时间: 06/07/2010

实施时间: 06/07/2010

Text

正文

The work principle of "mediation first and combined approach mediation and adjudication" is earnestly extracted from the judicial practice of the people's court, a scientific conclusion drawn from the in-depth analysis of the current situation and task at this stage, legacy and development of the fine tradition of the people' judicial practices, an innovative development of the people's judicial theory and the justice system, and thus has played an active role of great significance in vigorously guiding the people's court to diffuse the social contradictions through mediation, maintaining the social stability, and promoting the social harmony. These opinions are formulated with a view to further carrying out such principle.    “调解优先、调判结合”工作原则是认真总结人民司法实践经验，深刻分析现阶段形势任务得出的科学结论，是人民司法优良传统的继承和发扬，是人民司法理论和审判制度的发展创新，对于充分发挥人民法院调解工作在化解社会矛盾、维护社会稳定、促进社会和谐中的积极作用，具有十分重要的指导意义。为进一步贯彻该工作原则，特制定本意见。 Ⅰ We shall firmly instill awareness of mediation and further strengthen consciousness of carrying out the work principle of "mediation first and combined mediation and adjudication".

1. We shall have a profound understanding of the significance of strengthening the mediation work of the people's court at the new stage. We shall make all-out efforts to strengthen mediation, which is an imperative request of inheriting the excellent culture of the Chinese people and carrying forward the fine traditions of the people's justice, an inevitable requirement of bringing the political advantage of the socialism justice system with Chinese characteristics into play, maintaining the social harmony and stability, and fully making use of the function of the people's court.

Our nation is undergoing an important strategic opportunity period for the development of economy and society as well as a period of the highlighted social contradictions. Therefore, it is a formidable task to maintain the social harmony and stability. Thus, to continue to press ahead with the social contradictions settlement, social management innovation, and just and clean law enforcement are necessary requirements for the people's court at the new stage to perform its historical mission and answer the call of people's concerns and priority task for the people's court at current and the time to come. "Mediation first and combined approach mediation and adjudication" is not only an important principle of promoting the conflicts settlement, but also the important content of the social management innovation and testing of judicial capacity of the judges. With a view to further press ahead with the three priorities, we must unwaveringly carry out this work principle, unremittingly increase mediation consciousness, initiatively innovate the mediation system, make efforts to increase the capacity of mediation and promote the development of the macro-mediation working system of "three types of mediation and one system", that is, the people's mediation, administrative mediation, and judicial mediation so as to effectively resolve social contradictions and realize the goal of settling the cases and disputes, which therefore will provide effective judicial safeguard and service for ensuring sound and rapid economical and social development and maintaining the social harmony and stability.

2. Firmly instill the idea of "mediation first". Mediation is a high quality and efficiency adjudication while the capacity of mediation is the high judicial competence. Mediation is conducive to resolving the social contradictions, settling the cases and disputes, repairing the relations between parties, and achieving harmony. The courts at all levels shall have profound understanding of the unique advantage and important value of mediation in effectively resolving contradictions and disputes and promoting the social harmony and stability, earnestly transform the concept of emphasizing on adjudication while belittling mediation, and take mediation as a top priority in settling cases and initiatively choose mediation to address contradictions and disputes. In addition, mediation shall be run through every links of acceptance, adjudication, and enforcement and the entire process of the first trial, second trial, execution, retrial, appeal, and petition. Mediators shall be expanded from the judge to every member of the collegiate bench, the leader of the bench and the court. The scope of mediation, reconciliation, coordination cases is gradually expanded from civil cases to administrative cases, private prosecution cases, minor criminal cases, criminal cases with incidental civil action , the state compensation cases, and the execution and a three-dimensional mediation scheme covering the entire process of the adjudication and execution shall be set up. With sincere feelings towards the parties and wishes to settle the difficulties and practical things for the parties, we mediate. We shall try our best to mediate, not give up possibility of mediation happened at every stage before and after the action, and do our utmost to grasp every opportunity to close a case through mediation.

3. Accurately understanding and grasping the working principle of "mediation first and combining mediation with adjudication". It is necessary to center on the realization of the goal of "settling the cases and disputes" through the correct handling of the relationship between the two methods of mediation and adjudication. When settling cases, it is imperative to allow for the use of mediation first so as to guarantee that both hands are working hard all the time; the two methods of mediation and adjudication should all be grounded on the purpose of effectively settling disputes and promoting social harmony, so as to realize the organic unity of legal and social effects. It is imperative to start from the nature and specific conditions of each case as well as the claims of parties to scientifically handle the foundation and conditions of utilizing mediation or adjudication to settle the cases. For cases possible to be mediated, the utmost effort should be made to promote mediation; for cases impossible to be mediated or mediation-prohibited by laws, a quick adjudication should be made. The roles of the two methods of mediation and adjudication should be given full play. Please pay attention to avoiding haste adjudications that are at the price of effects as well as some forced mediations aimed for sheer mediation rates while sacrificing the intention of parties. Efforts should be made to raise the mediation-related case-completion rate and the rate of ending lawsuit caused from parties' satisfaction with adjudication, and to reduce the rate of lawsuit-related petition letters and the enforcement rate, so as to propel mediation work of the people's court onto a new stage and to realize a new development.

     一、牢固树立调解意识，进一步增强贯彻“调解优先、调判结合”工作原则的自觉性

    1、深刻认识新时期加强人民法院调解工作的重要性。全面加强调解工作，是继承中华民族优秀文化和发扬人民司法优良传统的必然要求，是发挥中国特色社会主义司法制度政治优势的必然要求，是维护社会和谐稳定的必然要求，是充分发挥人民法院职能作用的必然要求。    我国正处于经济社会发展的重要战略机遇期和社会矛盾凸显期，维护社会和谐稳定的任务艰巨繁重。深入推进社会矛盾化解、社会管理创新、公正廉洁执法三项重点工作，是人民法院在新形势下履行自身历史使命的必然要求，是人民法院积极回应人民群众关切的必然要求，也是当前和今后一个时期人民法院的首要工作任务。“调解优先、调判结合”既是推动矛盾化解的重要原则，也是社会管理创新的重要内容，又是对法官司法能力的考验。深入推进三项重点工作，必须坚决贯彻这一工作原则，不断增强调解意识，积极创新调解机制，努力提高调解能力，着力推动人民调解、行政调解、司法调解“三位一体”大调解工作体系建设，有效化解社会矛盾，真正实现案结事了，为保障经济社会又好又快发展，维护社会和谐稳定，提供更加有力的司法保障和服务。    2、牢固树立“调解优先”理念。调解是高质量审判，调解是高效益审判，调解能力是高水平司法能力。调解有利于化解社会矛盾，实现案结事了，有利于修复当事人之间的关系，实现和谐。各级法院要深刻认识调解在有效化解矛盾纠纷、促进社会和谐稳定中所具有的独特优势和重要价值，切实转变重裁判、轻调解的观念，把调解作为处理案件的首要选择，自觉主动地运用调解方式处理矛盾纠纷，把调解贯穿于立案、审判和执行的各个环节，贯穿于一审、二审、执行、再审、申诉、信访的全过程，把调解主体从承办法官延伸到合议庭所有成员、庭领导和院领导，把调解、和解和协调案件范围从民事案件逐步扩展到行政案件、刑事自诉案件、轻微刑事案件、刑事附带民事案件、国家赔偿案件和执行案件，建立覆盖全部审判执行领域的立体调解机制。要带着对当事人的真挚感情，怀着为当事人解难题、办实事的愿望去做调解工作。要做到能调则调，不放过诉讼和诉讼前后各个阶段出现的调解可能性，尽可能把握一切调解结案的机会。    3、准确认识和把握“调解优先、调判结合”工作原则。要紧紧围绕“案结事了”目标，正确处理好调解与裁判这两种审判方式的关系。在处理案件过程中，首先要考虑用调解方式处理;要做到调解与裁判两手都要抓，两手都要硬;不论是调解还是裁判，都必须立足于有效化解矛盾纠纷、促进社会和谐，定分止争，实现法律效果与社会效果的有机统一。要根据每个案件的性质、具体情况和当事人的诉求，科学把握运用调解或者裁判方式处理案件的基础和条件。对于有调解可能的，要尽最大可能促成调解;对于没有调解可能的、法律规定不得调解的案件，要尽快裁判，充分发挥调解与裁判两种手段的作用。既要注意纠正不顾办案效果、草率下判的做法，也要注意纠正片面追求调解率、不顾当事人意愿强迫调解的做法。要努力实现调解结案率和息诉服判率的“两上升”，实现涉诉信访率和强制执行率的“两下降”，推动人民法院调解工作迈上新台阶，实现新发展。 Ⅱ Improving the mechanism of mediation work; giving priority to key links; comprehensively pushing forward the mediation work

4. Further intensifying the mediation work of civil cases. Courts at all levels, especially grass-roots courts, should choose mediation as the first choice and basic method to settle civil cases. For all civil cases possible for mediation from legal explanation or the nature of these cases, mediation should be the first try, which means that mediation should be through all links of the procedure of civil trial.

According to Article 14 of Several Provisions of the Supreme People's Court on the Application of Summary Procedures in the Trial of Civil Cases, the civil disputes of damage compensation, homestead and neighborhood, and partnership agreement, as well as those with relatively small claims, which arise from disputes of marriage and family, inheritance, labor contract, traffic accident, and industrial accident respectively, should be firstly introduced into mediation when at trial unless those impossible for mediation or obviously unnecessary for mediation from their own nature and parties' actual situations.

Great efforts should be made to mediate the following civil cases: cases central to people's livelihood and community interests, and needing the cooperation of governments and related departments; mass cases, group action cases, and bankrupt cases that may affect social harmony and stability; civil dispute cases relating to civil liabilities, marriage, family, or inheritance; cases that are so complicated that it is difficult to form the preponderance of evidence; cases that parties are with severe contradiction; cases that with no or no clear legal rules or provisions, and cases having difficulty in applying laws; cases with executing difficulties after judgment; sensitive cases that are the concern of the society; retrial cases or petition cases that parties are severely contradictory.

According to Article 2 of Several Provisions of the Supreme People's Court on the Application of Summary Procedures in the Trial of Civil Cases, cases applicable for special procedure, procedure of hastening debt recovery, procedure of public notice for claims assertion, bankruptcy and debt repayment procedure, cases of marriage or personal status confirmation, and other civil cases that are impossible for mediation from their nature shall not be mediated.

5. Energetically exploring the mediation and reconciliation of criminal cases. When starting from the principle of punishing crime in accordance with the law, it is necessary to introduce the policy of combining temper justice with mercy to resolve the grievance between parties through active and effective mediation, so as to promote social harmony.

It is necessary to start from the relevant provisions of criminal law to actively mediate private prosecutor criminal cases so as to help both parties reach reconciliation. For cases that are reconciled through the accused person pleading guilty, showing repentance , willing to compensate the victim's damage, and winning the victim's understanding, the private prosecutor may drop the lawsuit or the criminal punishment may be mitigated or waived in accordance with the law. For the minor injury caused from disputes among the people and other minor criminal cases that have reached reconciliation of their own accord, the reconciliation should be permitted and recorded. It is also advisable to try some work to promote reconciliation on the prerequisite of no violation of laws.

For criminal cases with incidental civil cases, it is necessary to actively explore the mediation, compensation methods, the applicable time and duration as well as the time limit of trial, so as to grasp all positive factors helpful for that incidental civil action cases to be settled through mediation. Efforts should be made to strive for reaching compensation mediation agreement to create conditions for the correctly application of the policy of combining temper justice with mercy.

6. Striving to coordinate administrative cases. While safeguarding and supervising the exercise of administrative powers by administrative organs in accordance with the law, it is necessary to start from the features of different cases to actively and effectively coordinate and reconcile , so as to properly settle administrative disputes.

Subject to the provisions of the laws and regulations and apart from mediating cases of administrative compensation in accordance with the law, when the court accepts the administrative cases in respect to administrative adjudication, administrative affirmation of right rendered by the administrative authorities for trialing the civil disputes between parties with equal status, those cases in respect to the administrative penalty, administrative imposition, administrative compensation, administrative contract for which the administrative authorities may exercise their discretion, and cases that involved illegal specific administrative act or legal but irrational, it shall attach importance to case coordination.

For important and complicated cases that bear a relatively substantial influence, it is imperative to strive for the support of the party committee and the people's congress and the cooperation of administrative organ at a higher level, and invite relevant departments for a joint-coordination. As to administrative cases involved illegal specific administrative acts or lawful but irrational, it is imperative to do the best to facilitate administrative authorities to revoke unlawful acts, or announce the invalidity of the specific administrative acts on their own, or re-make a decision of settlement on their own accord.

7. Striving to mediate executive cases. It is necessary to further improve executive method, to give full play of mediating means and executing measures, to actively facilitate executive reconciliation, and effectively resolve executive difficulties.

For properties difficult to be discovered when to be executed, it is imperative to give full play to a joint mechanism of execution plus deterrence. Methods and means such as limiting extravagant consumption, reporting properties by the executed, entrusting lawyers for investigation, compulsory audit and assistant investigation of public security organs should be employed to do the best to discover the properties of the executed so as to urge the executed to put forward a feasible repayment plan.

In case the executed are companies that have difficulty, are restructured, or go bankruptcy, it is necessary to coordinate the related departments and the executed to comprehensively utilize such methods as execution guarantee, expiation of debts, and debt-to-equity swap, so as to promote the two parties to reach an executive conciliation agreement.

8. Further strengthening pre-trial mediation. After the party's indictment or oral indictment being sent and prior to official acceptance, cases without mediation from people's mediation, administrative mediation, industrial mediation and other non-litigious mediation agencies, the parties should be actively introduced into mediation process in the nearest non-litigious mediation agency in advance , so as to get them solved before action.

When parties choose a non-litigious mediation, the case acceptance should be paused; where parties insist on lawsuit instead of choosing a non-litigious mediation or fail to reach an agreement through non-litigious mediation, cases should be accepted promptly after being checked to conform to related provisions of the procedural law.

It is imperative to further strengthen the coordination and cooperation between the people's mediation organizations, administrative organizations and other mediation organizations. Grass-roots court where conditions are allowed, especially people's tribunal, should establish pre-litigious mediation office or "people's mediation window," so as to give full play to its shunting function.

9. Further intensifying the mediation after acceptance. After cases being accepted and before being transferred to the tribunal, it is necessary to give full play to the case-acceptance window's advantage as the firs-time contact with parties, and the first-time understanding the case, so as to actively lead the parties to choose mediation to settle disputes.

For simple civil cases with explicit facts, clear jural relations and not much disputes, prompt mediation should be made after acceptance; for mass cases,group action cases, highly-sensitive cases, public-concerned cases, mediation should be made as best it can after acceptance. For cases that the parties refuse to be mediated, that the parties or agents cannot be contacted in time, or that are complicated and highly disputable, or that are prohibited by the law for mediation, prompt transference for hearing should be made after acceptance. For cases that are discovered to be involved in the state interests, social public interests, and the interests of a third party, that need audit, evaluation, an appraisal, or that the investigation and collection of evidence by the people's court, mediation should be terminated and transference for hearing should be made.

Mediation after acceptance should be principled on effectiveness and efficiency, so as to avoid case overstock during the filing process. For civil cases in first instance applicable for summary procedures, the time limit of mediation after acceptance should be generally no more than 10 days after acceptance; for civil cases in first instance applicable for the ordinary procedure, the time limit of mediation after acceptance should be generally no more than 20 days and additional 10 days may be extended only when the two parties agree on it. The prolonged time will not be included into the trial time-limit.

10. Energetically exploring and strengthening court mediation. For cases being transferred to the tribunal and prior to hearing, if the parties agree on mediation, a prompt mediation should be carried out. It is necessary to furthering strengthening the construction of court mediation organizations, and for people's courts where conditions are allowed, special court mediation organizations should be explored for establishment. It is necessary to further optimize the allocation of trial resources, and for people's courts where conditions are allowed, law clerk and other assistants may be explored to be introduced to pilot court mediation, so as to improve the mediation efficiency and alleviate the judicial personnel workload.

11. Continuing to do well in the entrusted mediation and assisted mediation. After accepting the cases and before jurisdiction, if the parties agree, it is feasible to entrust people's mediation, administrative mediation, industrial mediation, and other mediation-favorable organizations, or deputy to the NPC or member of the CPPCC National Committee, to hold mediation. It may also be advisable to invite relevant units or technical specialist, lawyers to coordinate the mediation conducted by the people's court. The mediator may be selected by the both parties, or appointed by the people's court with the consent of both parties. The parties may negotiate the time-limit for the civil case mediation, but it is generally within 30 days. The time-limit may be prolonged on the basis of the agreement of both parties, but it shouldn't be longer than 60 days. The prolonged time will not be included into the trial time-limit. For people's court to entrust mediation, mediation transference letter should be made, major case documents should be attached, and notes and petitions of parties should be specified.

12. Much efforts should be made for mediating retrial cases. For prolonged and highly disputable retrial cases, severely contradictory retrial cases with parties' emotional conflicts, and retrial cases that can not achieve good effects even though be amended or affirmed, it is necessary to actively carry out mediation and coordination so as to help the parties to reach mediation, reconciliation agreement. For retrial cases owing to a protest, it is advisable to invite the procuratorial organ to coordinate the people's court in mediating. For ordinary retrial cases, it is feasible to require the courts of first and second instance to coordinate. For retrial cases at execution, it is probable to coordinate with the executive organs for a joint mediation.

13. Conscientiously conducting the mediation return visit. For cases already reaching mediation, courts at all levels may conduct a prompt return visit through field direct visit, long-distance telecommunication visit or entrusting the visit to grass-roots mediation network, so as to propel the parties to implement the mediation agreement. For cases of neighborhood, caused from traffic accidents, labor disputes or from other easily-causing disputes, the court mediation should be extend to the after-mediation period, so as to combine mediation return visit with the withdrawal of lawsuits and petition visits, eliminate the unharmonious symptoms, fortify mediation results and truly realize the settling of cases.

14. Attaching importance to the active role of lawyers and legal aid agencies played in mediation. Courts at all levels should actively promote and introduce lawyers, legal aid agencies to take part in or hold mediation and coordination, so as to jointly do well mediation. It is imperative to actively explore and strive for the support of local jurisdictional and administrative departments, as well as the bar associations, and with a view to resolving the contradiction between contingency fee and mediation settlement. It is necessary to actively propel bar associations to establish a mechanism to recommend excellent lawyers for mediators and to propel the mechanization and standardization of lawyers and legal aid agencies to take part in or hold mediation. For those excellent mediating lawyers and legal aid agencies, the people's court should recommend to the local judicial and administrative departments, or bar associations for award and reward.

     二、完善调解工作制度，抓好重点环节，全面推进调解工作

    4、进一步强化民事案件调解工作。各级法院特别是基层法院要把调解作为处理民事案件的首选结案方式和基本工作方法。对依法和依案件性质可以调解的所有民事案件都要首先尝试通过运用调解方式解决，将调解贯穿于民事审判工作的全过程和所有环节。    对《最高人民法院关于适用简易程序审理民事案件的若干规定》第十四条规定的婚姻家庭纠纷、继承纠纷、劳务合同纠纷、交通事故和工伤事故引起的权利义务关系较为明确的损害赔偿纠纷、宅基地和相邻关系纠纷、合伙协议纠纷、诉讼标的额较小的民事纠纷，在开庭审理时应当先行调解。但是根据案件的性质和当事人的实际情况不能调解或者显然没有调解必要的除外。    要下大力气做好以下民事案件的调解工作:事关民生和群体利益、需要政府和相关部门配合的案件;可能影响社会和谐稳定的群体性案件、集团诉讼案件、破产案件;民间债务、婚姻家庭继承等民事纠纷案件;案情复杂、难以形成证据优势的案件;当事人之间情绪严重对立的案件;相关法律法规没有规定或者规定不明确、适用法律有一定困难的案件;判决后难以执行的案件;社会普遍关注的敏感性案件;当事人情绪激烈、矛盾激化的再审案件、信访案件。    对《最高人民法院关于人民法院民事调解工作若干问题的规定》第二条规定的适用特别程序、督促程序、公示催告程序、破产还债程序的案件，婚姻关系、身份关系确认案件以及其他依案件性质不能进行调解的民事案件，不予调解。    5、积极探索刑事案件调解、和解工作。要在依法惩罚犯罪的同时，按照宽严相济刑事政策的要求，通过积极有效的调解工作，化解当事人恩怨和对抗情绪，促进社会和谐。    要根据刑事诉讼法有关规定，积极开展刑事自诉案件调解工作，促进双方自行和解。对被告人认罪悔过，愿意赔偿被害人损失，取得被害人谅解，从而达成和解协议的，可以由自诉人撤回起诉，或者对被告人依法从轻或免予刑事处罚。对民间纠纷引发的轻伤害等轻微刑事案件，诉至法院后当事人自行和解的，应当准许并记录在案。也可以在不违反法律规定的前提下，对此类案件尝试做一些促进和解的工作。    对刑事附带民事诉讼案件，要在调解的方法、赔偿方式、调解案件适用时间、期间和审限等方面进行积极探索，把握一切有利于附带民事诉讼调解结案的积极因素，争取达成民事赔偿调解协议，为正确适用法律和执行宽严相济刑事政策创造条件。    6、着力做好行政案件协调工作。在依法维护和监督行政机关依法行使行政职权的同时，要针对不同案件特点，通过积极有效的协调、和解，妥善化解行政争议。    在不违背法律规定的前提下，除了对行政赔偿案件依法开展调解外，在受理行政机关对平等主体之间的民事争议所作的行政裁决、行政确权等行政案件，行政机关自由裁量权范围内的行政处罚、行政征收、行政补偿和行政合同等行政案件，以及具体行政行为违法或者合法但不具有合理性的行政案件时，应当重点做好案件协调工作。    对一些重大疑难、影响较大的案件，要积极争取党委、人大支持和上级行政机关配合，邀请有关部门共同参与协调。对具体行政行为违法或者合法但不具有合理性的行政案件，要通过协调尽可能促使行政机关在诉讼中自行撤销违法行为，或者自行确认具体行政行为无效，或者重新作出处理决定。    7、努力做好执行案件和解工作。要进一步改进执行方式，充分运用调解手段和执行措施，积极促成执行和解，有效化解执行难题。    对被执行财产难以发现的，要充分发挥执行联动威慑机制的作用，通过限制高消费措施、被执行人报告财产制度，以及委托律师调查、强制审计、公安机关协查等方式方法，最大限度地发现被执行人的财产，敦促被执行人提出切实可行的还款计划。    对被执行人系危困、改制、拟破产企业的，要协调有关部门和被执行人，综合运用执行担保、以物抵债、债转股等方式，促成双方当事人达成执行和解协议。    8、进一步做好诉前调解工作。在收到当事人起诉状或者口头起诉之后、正式立案之前，对于未经人民调解、行政调解、行业调解等非诉讼纠纷解决方式调处的案件，要积极引导当事人先行就近、就地选择非诉讼调解组织解决纠纷，力争将矛盾纠纷化解在诉前。    当事人选择非诉讼调解的，应当暂缓立案;当事人不同意选择非诉讼调解的，或者经非诉讼调解未达成协议，坚持起诉的，经审查符合相关诉讼法规定的受理条件的，应当及时立案。    要进一步加强与人民调解组织、行政调解组织以及其他调解组织的协调与配合，有条件的基层法院特别是人民法庭应当设立诉前调解工作室或者“人民调解窗口”，充分发挥诉前调解的案件分流作用。    9、进一步强化立案调解工作。在案件立案之后、移送审判业务庭之前，要充分利用立案窗口“第一时间接触当事人、第一时间了解案情”的优势，积极引导当事人选择调解方式解决纠纷。    对事实清楚、权利义务关系明确、争议不大的简单民事案件，在立案后应当及时调解;对可能影响社会和谐稳定的群体性案件、集团诉讼案件，敏感性强、社会广泛关注的案件，在立案后也要尽可能调解。对当事人拒绝调解的，无法及时与当事人及其委托代理人取得联系的，或者案情复杂、争议较大的案件，以及法律规定不得调解的案件，应当在立案后及时移送审理。对在调解过程中发现案件涉及国家利益、社会公共利益和第三人利益的，案件需要审计、评估、鉴定的，或者需要人民法院调查取证的，应当终结调解程序，及时移送审理。    立案阶段的调解应当坚持以效率、快捷为原则，避免案件在立案阶段积压。适用简易程序的一审民事案件，立案阶段调解期限原则上不超过立案后10日;适用普通程序的一审民事案件，立案阶段调解期限原则上不超过20日，经双方当事人同意，可以再延长10日。延长的调解期间不计入审限。    10、积极探索和加强庭前调解工作。在案件移送审判业务庭、开庭审理之前，当事人同意调解的，要及时进行调解。要进一步加强庭前调解组织建设，有条件的人民法院可以探索建立专门的庭前调解组织。要进一步优化审判资源配置，有条件的人民法院可以探索试行法官助理等审判辅助人员开展庭前调解工作，提高调解工作效率，减轻审判人员的工作负担。    11、继续抓好委托调解和协助调解工作。在案件受理后、裁判作出前，经当事人同意，可以委托有利于案件调解解决的人民调解、行政调解、行业调解等有关组织或者人大代表、政协委员等主持调解，或者邀请有关单位或者技术专家、律师等协助人民法院进行调解。调解人可以由当事人共同选定，也可以经双方当事人同意，由人民法院指定。当事人可以协商确定民事案件委托调解的期限，一般不超过30日。经双方当事人同意，可以顺延调解期间，但最长不超过60日。延长的调解期间不计入审限。人民法院委托调解人调解，应当制作调解移交函，附送主要案件材料，并明确委托调解的注意事项和当事人的相关请求。    12、大力做好再审案件调解工作。对历时时间长、认识分歧较大的再审案件，当事人情绪激烈、矛盾激化的再审案件，改判和维持效果都不理想的再审案件，要多做调解、协调工作，尽可能促成当事人达成调解、和解协议。对抗诉再审案件，可以邀请检察机关协助人民法院进行调解;对一般再审案件，可以要求原一、二审法院配合进行调解;对处于执行中的再审案件，可以与执行部门协调共同做好调解工作。    13、扎实做好调解回访工作。对于已经达成调解协议的，各级法院可以通过实地见面访、远程通讯访或者利用基层调解工作网络委托访等形式及时回访，督促当事人履行调解协议。对于相邻权、道路交通事故、劳动争议等多发易发纠纷的案件，应当将诉讼调解向后延伸，实现调解回访与息诉罢访相结合，及时消除不和谐苗头，巩固调解成果，真正实现案结事了。    14、注重发挥律师和法律援助机构在调解工作中的积极作用。各级法院要积极推动、引导律师和法律援助机构参与或者主持调解、和解，共同做好调解工作。要积极探索，争取当地司法行政部门、律师协会的支持，注意解决律师风险代理收费与调解结案之间的矛盾。要积极推动律师协会建立推荐优秀律师担任调解员的制度，推进律师和法律援助机构参与或者主持调解工作的制度化、规范化。对于在调解工作中成绩突出的律师和法律援助机构，人民法院应当向当地司法行政部门、律师协会提出予以表彰和奖励的建议。 Ⅲ Standardizing mediation, innovating mediation mechanism, and improving mediating quality

15. Conscientiously implementing the principle of parties' voluntary mediation. It is necessary to actively guide and provide conditions, opportunities and necessary judicial guarantee for both parties to reach a mediation agreement. The parties' rights to select mediation or adjudication for settlement as well as their rights to decide on the timing, method, and content of the mediation agreement shall be respected unless otherwise stipulated by the law. In every link of the legal proceedings, the mediators shall use common and easy language to explain the law and answer the questions in response to the different features of literacy and action capacity of the parties, fully explain the potential action risks, guide the parties to resolve the disputes on a equal and voluntary basis after they fully recognize their own rights and obligations.

16. Conscientiously implementing the lawful mediation principle. It is imperative to standardize the judicial power exercised by the judge in the process of mediation in accordance with the laws, to guarantee that the mediation procedure conforms to relative legal provisions. No forced mediation against the parties' will is permitted, so as to prevent the forced mediation through the abuse of judicial threat, or the propelling of mediation through prolonging. It is imperative to ascertain the disputing pints and the common interests between the two parties to accurately and appropriately balance their interests and safeguard a basically balanced right and obligation between the two parties, so as to guarantee the validity of mediation results. It is imperative to conscientiously implement the duty to examine and affirm mediation agreement to make sure that its content will not be contradictory with the law, not be a damage to the state interests, social public interests, the interests of a third party and the good social tradition; it is imperative to appropriately give play to the function of judicial mediation to truly safeguard justice.

17 . Scientifically handling the timing for adjudication. While strengthening mediation, it is imperative to earnestly safeguard the legal interests of the parties, to prevent inappropriate mediation that caused by the irrational tendency of seeking for mediation rate; no mediation will be allowed to be conducted by sacrificing the legal interests of the parties. When discerning that one party is conducting a fake lawsuit or is prolonging the lawsuit by way of mediation, the court should put it to end immediately and execute a prompt adjudication; For the scheme put forward by one party is obviously unjust, and the forced mediation may solicit lawbreakers and the default party, and bring damage to the law-abiders and the observant party, a prompt verdict may be rendered in accordance with the law; if the time, efforts, costs spent on the mediation are not proportional to the effectiveness of the resolved disputes, a prompt verdict may be rendered; for cases involved the state interests or social public interests, cases with the significance of guiding law application, or cases bearing active influence over the formation of the sense of social rules, attention should be paid to issuing a lawful and prompt verdict to give full play to its positive function of distinguishing right and wrong, standardizing manners and punishing evil-doers and praising good-doers.

18. Strengthening the supervision and management of mediation. It is necessary to give full allowance for the features of mediation to complete the judicial process management system favorable to the scientific development of mediation. It is essential to implement the regulations promulgated in Article 4 and 6 of Several Provisions of the Supreme People's Court on the Application of Summary Procedures in the Trial of Civil Cases that the prolonged conciliation and mediation time will not be included into the trial time-limit; it is advisable to rationally widen the applicable time and duration as well as the time limit of mediation. For cases that both parties are willing to be mediated but the time-limit is near expiry, the two parties may negotiate a new time-limit for mediation which will be recorded by the executing judge after being approved by the people's court. For cases possible to be reached a mediation agreement but the parties failed to reach a new time-limit, the mediation time-limit may be rationally prolonged after the approval of the court president. At the same time, it is imperative to allow for the features of each judicial link of mediation cases to decide a proper case flow so as to prevent the prolonging of case-dealing time caused from inefficiency of the connection of mediation and adjudication, and the handover between them; it is also imperative to strengthen the mediation-related follow-up management and evaluation to timely settle the problems raising from mediation, conscientiously resolve the problems of a forced mediation or prolonged mediation, so as to guarantee the quality of mediation.

19. Further enhancing the judge's professional behavior constraints at mediation. When at mediation, judges from courts of all levels should pay attention to the dress and appearance, constrain the behavior manners, stay objectiveness and impartiality, and protect both parties' legal interests in an equal manner without favoring any one party. Starting from the specific situations, the judge may do mediation for both parties respectively without violating relative provisions, personally meeting one party or such party's agent.

20. Further standardizing the application of the urging clause and the guarantee performance clause of a mediation agreement. When at mediation, it is necessary to pay attention to the performance ability and sincerity of the obligor. While ensuring that the mediation agreement is specified, clear and feasible, it is essential to guide the parties to apply the urging clause and the guarantee performance clause stipulated in Several Provisions of the Supreme People's Court on the Application of Summary Procedures in the Trial of Civil Cases so as to improve the self-fulfilling rate of the mediation agreement. For cases that the plaintiff is unwilling to be mediated out of suspecting the sincerity of the defendant to fulfill the agreement, cases with relatively large claims, and cases with relatively long performance time schedule or with installment performance, it is feasible to apply the urging clause and the guarantee performance clause to promote the reaching of a mediation agreement and the obligor to perform the agreement of his own accord. It is imperative to generalize mediation-related experience, stipulate standardized expressions, and specify the validity conditions of articles so as to prevent both parties from different understandings of the content of the agreement after the case being settled.

21. Setting up and improving a typified mediation mechanism. It is imperative to constantly generalize mediation-related experience and energetically explore the mediation disciplines so as to completing a typified mediation mechanism with the content as a classified mediation cases, a professionalized mediation judges, and a specialization of mediation methods. By establishing a relevant mediation method, the court will improve the efficiency and success rate of cases of the same type. Starting from the similarity in their interests appeals and disputed points, we should introduce a pilot typified mediation modes for cases of traffic accident damage compensation disputes, medical damage compensation disputes and labor disputes to attain the effect that one case mediated, cases of the same type will be easy to be mediated. It is imperative to appoint professional and experienced mediation judges for the different features of different cases, to encourage judges to intensify the study and classification of mediation theory and methods for a specific type of cases, so as to distill the effective mediation methods that have been proved from mediation into mediating skills for cases of the same type and to constantly enriching the forms and methods of mediation.

22. Setting up and improving the incentive mechanism for mediation. It is essential to modify and improve the statistics indicator system of mediation and to improve statistical criteria, so as to apply the statistics and evaluation to all links of mediation of civil cases (prior to the legal proceedings, case acceptance, pre-trial, trialing, after-trial, executing, retrial, appealing, and petition visit, etc) and to all mediations and coordination for criminal and administrative cases. As to the evaluation indicator system, while appropriately allowing for the quantity of cases, the settlement rate and the rate of amendment of cases and remanding , it is essential to give prominence to the evaluation of the social effect of case-handling, to add the weighing of the rate of withdrawing charges with mediation, the rate of ending lawsuit from satisfaction with adjudication, the rate of retrial application, the rate of appealing, the rate of petition visits, the rate of enforced executive and the rate of automotive performance of mediation. It is necessary to complete a quantified evaluation system and assessment method that can reflect the mediation workload and the social effect, so as to make them as the standard for evaluating the working effect of courts at all levels and the reference for assessing the performance of judges, and with a view to guiding mediation to a correct direction and improve the level of mediation.

23. Setting up and improving a permanent mechanism for the fostering of mediation ability. It is imperative to timely generalize mediation experience, to sort out typical cases and enhance the guide of mediation. It is necessary to list the fostering of mediation ability into the annual and special training plan for judges, centering on improving the ability to communicate with and convince the public, and with a view to enhancing mediation ability. It is essential to further carry out such practice as judges teaching judges and new-comers to be trained at grass-roots units and petition visit windows, and to encourage judges to go into the public and the grass-roots level to get a good grasp of social situation and people's will and to understand the local customs and manners, so as to learn to utilize the local dialect, to get close to the people, and to really enhance the effect of mediation.

24. Setting up and improving the mediation safeguarding mechanism. Courts at all levels should act actively to strive for the support of the local party committees and governments to include the mediation funds in the fiscal budget. It is necessary to actively strive for the Central government's special allowance funds for politics and law and the provincial corresponding supportive funds to give full play to their function and to increase the input of mediation funds. The grass-roots courts should be given special support in funds, equipment and size of personnel force, so that the mediation foundation will be further fortified by increasing input. It is necessary to strive for special funds support to provide financial guarantee for specially invited mediators and entrusted mediators, and award and reward for those specially invited mediators and entrusted mediators that stand out in mediation.

     三、规范调解活动，创新调解工作机制，提高调解工作质量

15、切实贯彻当事人自愿调解原则。要积极引导并为双方当事人达成调解协议提供条件、机会和必要的司法保障。除了法律另有规定的以外，要尊重当事人选择调解或者裁判方式解决纠纷的权利，尊重当事人决定调解开始时机、调解方式方法和调解协议内容的权利。要在各个诉讼环节，针对当事人的文化知识、诉讼能力的不同特点，用通俗易懂的语言，进行释法解疑，充分说明可能存在的诉讼风险，引导当事人在充分认识自身权利义务的基础上，平等自愿地解决纠纷。    16、切实贯彻合法调解原则。要依法规范调解过程中法官审判权的行使，确保调解程序符合有关法律规定，不得违背当事人自愿去强迫调解，防止以判压调、以拖促调。要及时查明当事人之间的纠纷争执点和利益共同点，准确合理确定当事人利益关系的平衡点，维持双方当事人权利义务基本均衡，确保调解结果的正当性。要认真履行对调解协议审查确认职责，确保调解协议的内容不违反法律规定，不损害国家利益、社会公共利益、第三人利益以及社会公序良俗，正确发挥司法调解的功能，切实维护公平正义。

17、科学把握当判则判的时机。要在加强调解的同时，切实维护当事人合法权益，注意防止不当调解和片面追求调解率的倾向，不得以牺牲当事人合法权益为代价进行调解。对当事人虚假诉讼或者假借调解拖延诉讼的，应依法及时制止并做出裁判;对一方当事人提出的方案显失公平，勉强调解会纵容违法者、违约方，且使守法者、守约方的合法权益受损的，应依法及时裁判;对调解需要花费的时间精力、投入的成本与解决效果不成正比的，应依法及时裁判;对涉及国家利益或者社会公共利益的案件，具有法律适用指导意义的案件，或者对形成社会规则意识有积极意义的案件，应注意依法及时裁判结案，充分发挥裁判在明辨是非、规范行为、惩恶扬善中的积极作用。

18、加强对调解工作的监督管理。要充分考虑调解工作的特点，建立健全有利于调解工作科学发展的审判流程管理体系。要落实《最高人民法院关于人民法院民事调解工作若干问题的规定》第四条、第六条关于特定情况下的和解、调解期间不计入审限的规定，合理放宽对调解案件适用时间、期间和审限的限制。当事人愿意进行调解，但审理期限即将届满的，可以由当事人协商确定继续调解的期限，经人民法院审查同意后，由承办法官记录在卷。案件有达成调解协议的可能，当事人不能就继续调解的期限达成一致的，经本院院长批准，可以合理延长调解期限。同时，要针对各类调解案件在审理流程中不同环节的特点，确定合理的案件流转程序，避免在调判对接、调判转换环节因效率不高而延长案件处置周期;要加强对调解工作的跟踪管理和评查，及时纠正调解工作中存在的问题，着重解决硬调、久调不决等问题，确保调解工作质量。

19、进一步加强对法官在调解工作中的职业行为约束。各级法院的法官，在调解过程中要注重着装仪表，约束举止言行，保持客观公正，平等保护各方当事人合法权益，不偏袒一方。根据案件的具体情况，法官可以在调解过程中分别做各方当事人的调解工作，但不得违反有关规定，私自单方面会见当事人及其委托的代理人。

20、进一步规范调解协议督促条款、担保履行条款的适用。在调解过程中，要关注义务履行人的履行能力和履行诚意，在确保调解协议内容具体、明确并具有可执行性的同时，注重引导当事人适用《最高人民法院关于人民法院民事调解工作若干问题的规定》第十条、第十一条规定的督促条款和担保履行条款，提高调解协议的自动履行率。对原告因质疑被告履行调解协议的诚意而不愿调解的案件、争议标的额较大的案件，以及调解协议确定的履行期限较长或者分期履行的案件，可以通过适用督促条款、担保履行条款，促进调解协议的达成，促使义务履行人自动履行调解协议。要注意总结调解经验，制定规范性的表述方式，明确条款的生效条件，防止调解结案后双方当事人对协议条款内容的理解产生歧义。

 21、建立健全类型化调解机制。要不断总结调解经验，努力探索调解规律，建立健全以调解案件分类化、调解法官专业化、调解方法特定化为内容的类型化调解机制，建立相应的调解模式，提高调解同类案件的工作效率和成功率。要根据案件利益诉求、争议焦点的相似性，对道路交通事故损害赔偿纠纷、医疗损害赔偿纠纷、劳动争议等案件试行类型调解模式，实现“调解一案、带动一片”的效果。要根据类型案件的特点，选配具有专业特长、经验丰富的法官调解，鼓励法官加强对类型案件调解理论和方法的梳理和研究，将经过实践检验行之有效的个案调解方法，提升为同类案件的调解技巧，不断丰富调解的形式和手段。

22、建立健全调解工作激励机制。要修改完善调解工作统计指标体系，完善统计口径，要从统计和考核民事案件调解情况，发展到对诉前、立案、庭前、庭中、庭后、执行、再审、申诉、信访等诸环节的调解案件，以及刑事、行政等各项调解、和解和协调工作进行统计和考核。在考核指标体系方面，在适当考虑办案数量、结案率和改判发回率的同时，突出对办案社会效果的考核，加大调解撤诉率、服判息诉率、申请再审率、申诉率、信访率、强制执行率和调解案件自动履行率等指标的权重。要建立健全能够反映调解工作量和社会效果的量化考核体系和考评方法，作为评价各级法院调解工作成效的标准和法官业绩考评的参考依据，正确引导调解工作方向，提高调解水平。

23、建立健全调解能力培养长效机制。要及时总结调解工作经验，整理典型案例，加强对调解工作的指导。要把调解能力培养列入法官年度和专门培训计划，要以提高做群众工作的能力为核心，着力加强调解能力建设。要继续推行法官教法官、新进人员到基层和信访窗口接受锻炼等做法，鼓励法官深入社会、深入实践、深入基层，深刻把握社情民意，了解本地风俗习惯，学会运用群众语言，不断贴近人民群众，切实增强调解工作的效果。

24、建立健全调解保障机制。各级法院要积极争取当地党委和政府的支持，把调解工作经费纳入财政预算。要积极争取中央政法补助专款资金和省级财政配套资金支持，充分发挥专款资金的使用效益，加大对调解工作的经费投入。要在经费、装备和人员编制等方面向基层法院和人民法庭倾斜，加大投入，进一步夯实调解工作基层基础。要争取专项经费支持，为参与调解的特邀调解员、委托调解人提供经费保障，对在调解工作中成绩突出的特邀调解员、委托调解人，要予以表彰和奖励。

Ⅳ. Further propelling the construction of macro-mediation working system and constantly improving the dispute settlement mechanism with Chinese characteristics

25. Insisting on propelling the construction of working system under the support of the Party committee leaders and the government. Courts at all levels should rely firmly on the Party committee leaders, actively strive for the government support, encourage the participation of various circles of society, and give full play the impetus role of judicial departments, so as to integrate the macro-mediation working system of people's mediation, administrative mediation and judicial mediation into the overall deployment of propelling three key workings. Starting from the insistence on the three mediation performing their own functions respectively, we will give full play of the guiding and safeguarding role of judicial mediation to strengthen its coordination with people's mediation and administrative mediation in terms of procedure connection, effect affirmation and law guidance, so as to timely resolve social contradictions and disputes at the grass-roots and energetically promote social harmony and stability.

26. Propelling the establishment of the macro-mediation working network system. Courts at all levels should strengthen the cooperation with village committee, neighborhood committee, trade union, Youth league, women's federation and overseas Chinese federation to form a joint force to resolve social contradictions. It is imperative to fully utilize our own sources to support other mediating organizations to conduct work. Where conditions permit, people's mediation office and other necessary working sites may be arranged in the grass-roots court and people's tribunal to provide support for other organizations, and at the same time, mediating sources of other social organization and relevant department should also be utilized. Circuit mediation points may be established at the local police station, traffic police department, women's federation and trade union where there are relative many disputes to be settled. It is imperative to establish a specially invited mediations and mediating volunteers' network library centering on deputy to the NPC, member of the CPPCC National Committee, cadre at the basic level, people's assessor, retired cadre and personages of various circles of society that cover all levels, all departments and all walks of life, so as to strengthen the connection with network of people's mediation and administrative mediation and to gradually form a macro-mediation working system for which sources and strength are shared and a good interaction is set up

27. Strengthening communication and coordination within the macro-mediation working system. Courts at all levels should strengthen the contact with all levels of joint conference, people's mediation, administrative mediation and other mediating organizations to promptly get the progress of contradiction and dispute investigation, so as to firmly capture the source, fundamental and basic issues that affect social harmony and stability; it is essential to give full play to the functional complementation of different mediation organizations to guide different organizations to settle different types of disputes, so as to let them conduct the mediation with joint efforts. It is essential to rely on the leadership of Party committee and the macro-mediation working system to handle the working scheme in advance for important cases that may be suited to the people's court, to fully rely on the macro-mediation working system to coordinate relevant functional departments to appropriately settle the accepted important or mass cases.

28. Strengthening the legal counseling of people's mediation and administrative mediation. Courts at all levels should strengthen the communication and experience exchange with people's mediation and administrative mediation organizations, to learn from each other's successful experience and conducts for mutual improvement. It is imperative to actively conduct the analysis and study of the new situations and problems arising from the work related to the macro-mediation working system, to fortify the guidance for people's mediation and administrative mediation organizations, help people's mediation and administrative mediation organizations to improve their working procedures, and standardize mediation. It is imperative to coordinate with judicial and administrative organs and other functional department and relevant organizations to appoint experienced judging personnel to train people's mediator and administrative mediator in the form of "training through cases," and "demonstrating mediation". For mediation agreements and their reasons that the people's court has changed, revoked, or affirmed to be invalid, it is imperative to promptly report to relevant mediating organizations in an appropriate way, and put forward opinions and suggestions over the problems arising form hearing.

29. Further improving mediation connection mechanism. Cases that the agreement have been reached through people's mediation, administrative mediation, industrial mediation or other competent mediating organizations, if they need to be affirmed their validity, the people's court with the jurisdiction should timely examined and affirmed in accordance with the law; if they are suitable to enforcement, the people's court should execute promptly in accordance with the law. For the mediation agreement involved a creditor's right reached out of the court are conferred the right of enforced execution by rotary organs in accordance with the law, the creditor may apply to people's court where the executed lives or the properties of the executed are located.

     四、进一步推动“大调解”工作体系建设，不断完善中国特色纠纷解决机制

25、坚持在党委领导和政府支持下推进工作体系建设。各级法院要紧紧依靠党委领导，积极争取政府支持，鼓励社会各界参与，充分发挥司法的推动作用，将人民调解、行政调解、司法调解“大调解”工作体系建设纳入推进三项重点工作的整体部署。在坚持三大调解各司其职的前提下，充分发挥司法的引导、保障作用，加强与人民调解、行政调解在程序对接、效力确认、法律指导等方面的协调配合，及时把社会矛盾纠纷化解在基层和萌芽状态，有力促进社会和谐稳定。

26、推动“大调解”工作网络体系的建立。各级法院要加强与村委会、居委会、工会、共青团、妇联、侨联等组织密切配合，形成化解社会矛盾的合力。要充分利用自身的资源来支持其他调解组织开展工作，有条件的地方可以在基层法院和人民法庭设立人民调解工作室等必要的办公场所，为其他组织调处纠纷提供支持，同时也要注意利用其他社会组织和有关部门的调解资源。可以在处理纠纷比较多的派出所、交警队、妇联、工会等单位设立巡回调解点。要建立以人大代表、政协委员、基层干部、人民陪审员、离退休干部以及社会各界人士组成的覆盖各级、各部门、各行业的特邀调解员、调解志愿者网络库，加强与人民调解、行政调解组织网络的对接，逐步形成资源共享、力量共用、良性互动的“大调解”工作网络体系。

27、加强在“大调解”工作体系中的沟通协调。各级法院要加强与各级联席会议、人民调解、行政调解以及其他调解组织的联系，及时掌握矛盾纠纷排查情况，紧紧抓住影响社会和谐稳定的源头性、根本性、基础性问题，充分发挥不同调解组织的职能互补作用，引导不同类型的矛盾纠纷由不同的调解组织解决，相互借力、共谋调处。要依靠党委的领导和“大调解”工作体系，对可能起诉到人民法院的重大案件提前做好工作预案，对已受理的重大或群体性案件，要充分依托“大调解”工作体系协调相关职能部门稳妥处置化解。

28、加强对人民调解、行政调解的法律指导。各级法院要加强与人民调解、行政调解组织的工作沟通和经验交流，相互学习借鉴好经验、好做法，共同提高调解水平。要积极开展对“大调解”工作中新情况、新问题的分析研究，加强对人民调解、行政调解组织的指导，帮助人民调解、行政调解组织完善工作程序，规范调解行为。要配合司法行政机关等政府职能部门和有关组织，指派审判经验丰富的审判人员采取“以案代训”、“观摩调解”等方式对人民调解员、行政调解人员开展培训。对人民法院变更、撤销或者确认无效的调解协议及其原因，应当以适当方式及时反馈给相关调解组织，并就审理中发现的问题提出意见和建议。

29、进一步完善调解衔接机制。对经人民调解、行政调解、行业调解或者其他具有调解职能的组织调解达成的协议，需要确认效力的，有管辖权的人民法院应当依法及时审查确认;符合强制执行条件的，人民法院应当依法及时执行。具有债权内容的诉讼外调解协议，经公证机关依法赋予强制执行效力的，债权人可以向被执行人住所地或者被执行的财产所在地人民法院申请执行。