Over the past few years, the civil cases or administrative claims have been increasing on quantity as well as complex nature. There are opinions that, in reality, while Western countries choose negotiation or mediation as the first measure of dispute settlement, court is favored in Vietnam as main measure of
dispute resolution in Vietnam. Theoretically, Vietnam legal system shows that the regulations on mediation, dialogue have been relatively formulated during the judicial reform process. To address the gap in reality, there are recent changes in regulations encouraging parties to use mediation and dialogue as dispute resolution. Recently, the Draft Law on Mediation, Dialogue at the Court has been published since 01 October 2018 for public opinions.
Organization of Court Annexed Mediation and Dialogue in Vietnam
In order to implement mediation and dialogue at court, the Chief Justice of People’s Supreme Court issues the decision on establishing Mediation and Dialogue Center including Director, Deputy Director(s), Mediators.
The Director is the head of Center appointed by one of two following measures: (1) the Chief Justice of the Court in the locality where the Center is located assigns the Judge to act according to the rotational regime; or (2) the Mediators elect among themselves. Human resources are mobilized to appoint Mediators selected from the followings: (1) retired Judges, Procurators, Investigators and other retired judicial officials; (2) Retired junior or senior officials; (3) Experts and other professionals with at least 10 years of experience in its work; and (4) Person with high prestige in society and satisfying the following standards:
– Being a Vietnamese citizen, residing in Vietnam, loyal to the Fatherland and the Constitution of the Socialist Republic of Vietnam, having good moral qualities, having strong political will and prestige in the community, honest, objective;
– Having good health to ensure the fulfillment of the assigned tasks;
– Having experience and capacity for mediation and dialogue;
– Volunteer for mediation, dialogue settlement.
In the situation of tight state budget and overload of work at Court, the mobilization of human resources not belonging to the State but meeting certain criteria for being Mediators is one of the necessary requirements to ensure the success of this regulation.
Scope of Court Annexed Mediation and Dialogue in Vietnam
Scope of mediation and dialogue under the provision of this Draft shall be applicable to civil and administrative disputes; request for recognition of voluntary divorces, child custody agreement, division of property upon divorce within the jurisdiction of the Court according to the provisions of the Civil Procedure Code, Law on Administrative Procedures or civil, administrative dispute requested by one or more parties to the Court annexed mediation and dialogue for settlement.
The Procedures for Court Annexed Mediation and Dialogue in Vietnam
Upon receipt of the lawsuit petition, petition for recognition of voluntary divorces, child custody agreement, division of property upon divorce as provided in Article 190 of the Civil Procedure Code, Article 119 of the Law on Administrative Procedures, the Court shall forward the petition, request and the documents and evidences enclosed to the court annexed Mediation and Dialogue Center when satisfying the following conditions: (1) The case falls under the jurisdiction of the Court; (2) The claimant, the defendant do not refuse the mediation or dialogue before the court accepts the case; and (3) The case shall not fall into the case which must not be mediated under the provisions of the Civil Procedure Code or which dialogues cannot be held under the Law on Administrative Procedures.
According to the prevailing laws, there are two types of conciliation: pre-litigation conciliation and conciliation in litigation proceedings. The conciliation process under Civil Procedure Code, Law on Administrative Procedures shall not be governed by the Law on Mediation and Dialogue. Therefore, mediation under this draft law is in the form of optional pre-litigation mediation.
After mediation or dialogue, the parties can request the Court to recognize the successful mediation or dialogue settlement. The decision to recognize or to not recognize a successful out-of-Court mediation result shall immediately take effect and shall not be appealed against according to appellate procedures (Item 8 of Article 419 of the Civil Procedure Code 2015), but can be protested according to cassation or reopening procedures under the provisions of the Civil Procedure Code. This provision is also recorded in the Draft of Law on Mediation, Dialogue. Out-of-court mediation results are recognized by the court and will be enforced by civil judgment enforcement agencies under law on enforcement.
From the international experience and the reality of Vietnam, the effective implementation of the mechanism of mediation and dialogue has great significance for the settlement of civil and administrative disputes, promotes consensus in society; reduces the number of cases workload, the demand to bring to trial; facilitates the Court to focus resources to further improve the quality of the trial.
Pilot Project of Court Annexed Mediation in Vietnam
Through the pilot project under decision No. 332/QD-TANDTC dated Mar 9th, 2018, Official letter No. 48/TANDTC-PC dated Mar 9th, 2018, and Official letter No. 72/72/TANDTC-PC dated Apr 16th, 2018 the Mediation and Dialogue Center in Hai Phong has received more than 2,500 petition and brought to mediation, dialogue nearly 2,400 applications. The project has been expanded to Hanoi, Ho Chi Minh City, Da Nang, Bac Ninh, Khanh Hoa, Long An. The results and experience of the project will be an important basis for the drafting of the Law on Mediation and Dialogue.
Tuan Nguyen, Esq., CEDR Accredited Mediator
