What Does a Divorce Mediator Do?

Divorce mediation refers to the mediation of divorce disputes when the other party to the marriage does not agree with the divorce. It is an important and effective way to handle marriage disputes. Divorce mediation in China is divided into extra-litigation mediation and mediation in litigation. The former is the mediation of divorce disputes by the relevant departments; the latter is the mediation of divorce proceedings by the People's Court. Divorce mediation is a necessary procedure in divorce proceedings in China. ^[1]

Divorce mediation

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1. Mediation environment.

In general, when our lawyers represent divorce cases, mediation is usually used at all stages of the litigation. Before the lawsuit, we usually invite the other party or their lawyer to mediate and discuss divorce. Generally we will agree to do it in a coffee shop or tea house. The general environment of these places is elegant and friendly, and it is easier to facilitate communication between the two parties than a serious law firm environment. When mediation, do not go to the client's residence of the other party unilaterally, otherwise, it is difficult for the lawyer to explain clearly if there is a dispute or misunderstanding.

2. Mediation language.

During mediation, try to give the other party a neutral feeling. Attorneys must also hold the sincerity of mediation, and do not blindly talk about their opinions and reasoning from the perspective of their clients. When negotiating with the other party, try to communicate in a friendly language, and avoid communicating with the other party in a dignified, arrogant, and cold tone. At the same time, in mediation, don't comment more on the right and wrong of the two sides, and focus on dispute differences and narrowing disputes.

3. Mediation skills.

During mediation, first find out the differences and screen the focus of the dispute. Find out the reasons for the differences between the two sides, and how to reduce the gap. Observe the expressions of the parties and use various methods and techniques to enter the mediator's thinking. The mediation process should leave no trace, and ultimately protect the rights and interests of both parties. After seizing the focus of the dispute between the two parties, find the common ground of the two parties and the way to resolve the dispute. Moderately disclose their thoughts on reconciliation, show relevant laws and regulations, and discuss the mediation ideas and plans together. In mediation, we must pay attention to creating a mediation atmosphere, pay attention to seizing the opportunity of mediation, grasp the principles of mediation, and pay attention to the personality characteristics of the parties in the case.

In mediation, we must pay attention to the emotions of the parties to the divorce case, so as to keep the parties as calm and rational as possible, so that mediation can be more easily achieved. If the parties are emotional, pay attention to using the following methods to mediate the parties' emotions:

(1) Cooling method.

When one party is too emotional, try to cool down their anger, for example, keep the two parties apart, go to public places, change topics, etc.

(2) The catharsis law.

For those who are obviously suppressed, those who have a strong desire to confide, may wish to let them express their opinions and let them vent their inner anger and dissatisfaction. This is very important for marriage lawyers. Sometimes, one's own party or the other party is complaining or complaining, even if the content of the speech is not related to the handling of the case, or even unpleasant, don't interrupt it immediately and let it be released. Patients who are truly weak or without fault should listen patiently, show sympathy, and give comfort. After the parties have vented, calmness will return to peace, which will have a positive effect on the success of mediation.

(3) Accompanying law.

Some parties fall into a whirlpool of emotions themselves and are difficult to brag about themselves and emotionally, but their families or relatives may view the facts clearly. Therefore, during mediation, choosing the person of the party's unit, the person of the neighborhood committee, relatives, friends, and parents to accompany can increase the chance of success. However, relatives who apparently disagree from the perspective of their own family members, and relatives and friends who may clearly cause quarrels or may provoke conflicts, should try to exclude the presence of mediation to prevent conflicts from expanding and conflicts.

In short, lawyers are

First, the parties reconciled after mediation, the plaintiff withdrew the lawsuit, and the lawsuit ended;

Second, the two parties reached a divorce agreement, and the people's court produced a divorce mediation letter according to the agreement. Once the mediation letter was served, it became legally effective and the marriage relationship was terminated.

Third, mediation is invalid and should proceed immediately to the next proceeding. ^[3]

The divorce mediation of the people's court refers to the mediation work conducted by the people's court in accordance with legal procedures for the divorce cases that have been accepted. Mediation can take place both before and during the trial.

Here, let's start with a divorce case: the case is a very ordinary divorce case, the plaintiff named Wu Feng, and the defendant named Ding Quan. During the trial, the plaintiff stated that the defendant had a bad habit of eating, drinking, gambling, a third person appeared in the family, and the man had committed violence. The defendant agreed to divorce and volunteered to raise the children. However, claiming that the family owed more than 40,000 yuan of foreign debts, the plaintiff was required to bear half of it, and the family's property was "because I earned it and should belong to me." Throughout the trial, the two sides had a fierce dispute and did not give up.

The plaintiff stated that the defendant had a lot of money in business all year round, but there was no evidence. The defendant claimed that he had a debt of 40,000 yuan without a deposit. Since almost all the disputed facts in the divorce case occur between the two, it is difficult to prove. The more sophisticated false evidence may even be deemed valid by the court. In this case, it is almost impossible for the plaintiff to provide evidence to prove the defendant's economic status. According to the rules of evidence, if he cannot provide evidence that is beneficial to himself, he should bear the adverse consequences. In reality, there is a question of the strength of proof.

How much family property and where are the children raised for their growth? The balance of the pros and cons of the above question, who can do the fairest? There is a saying saying that it is difficult for a clean official to break housework. As a judge, it should be clear that most housework is difficult to distinguish right from wrong. The best judge of the balance of interests between husband and wife is themselves. Of course, if the divorce case is judged by a contractor, it is not difficult. However, from the perspective of fairness, the author believes that it is more fair to respect the agreement of both parties, that is, to use the mediation method than the judge's decision.

Since focusing on the principle of mediation is so important in the trial of divorce cases, how should mediation be conducted? What should be done? This is also an important issue in implementing the principle of mediation.

For example, in the above case, the two parties were very "hostile". Even if the judge explained the reason to both parties, the two parties were unwilling to "look down" to each other. In this case, how can the two parties communicate? Can Kaiqi mediate again?

There is a question of intermediation among judges. When a dispute arises among the common people, the two parties often invite a third party to match it, and the middleman will go to the home of the two parties to do the work alone, to avoid quarrels between the two parties, make the two parties agree, and end up being troubled. The difference between judge mediation is that judges are law enforcers and their identities are different. From the standpoint of enabling the two parties to reach a consensus, they have similarities. Therefore, it is necessary to discuss what we call "back-to-back" mediation.

"Back-to-back" mediation has always been considered a violation of the procedure. Because the judge and the party are in separate contact, talking to one party alone will bring opportunities for the judge to rule; further, it cannot bring the two parties together to fully negotiate and cannot reflect The essence of mediation.

There is a certain bias in this analysis: during the trial, the parties have already stated the facts and it is impossible to change them. The court debate has also been completed. The reasons for the parties to state the courts have also been clearly stated. During mediation, The parties will be made aware of the relevant legal provisions, and it is not uncommon for the judge to talk to them separately under the deadlock between the two parties. Furthermore, the two sides cannot communicate in a "hostile" state, and it is even more difficult to talk about a "win-win" agreement.

It should be pointed out that things that are very rigorous theoretically and logically often deviate from practice, and the difference from practice to theory is much smaller. In fact, "back-to-back" mediation is just a matter of mediation method. In the above case, the author adopted the "back-to-back" mediation method in the mediation process. In a separate conversation with the defendant, the defendant stated that "In fact, I can give her all the property at home, and give her whatever she wants." If she still wants money, I can give her some more. "; When speaking with the plaintiff alone, the plaintiff said," As long as the family property gives me a portion of the money he earns, he will give it if he is willing to, or not if he does. " , The two sides have found a balance of interests. It is conceivable that if a verdict is imposed, the effect will be much worse.

In the actual trial work, many judges have always adopted the "back-to-back" mediation method. They believe that this is a very effective mediation method, which reflects the principles of fairness and justice and the self-rights of the parties, while saving time and effort. . There is no separate interview record in the mediation transcript or court transcript. The judges did this precisely because it was very operable and the effect was relatively satisfactory.

Child custody is an important content in divorce mediation. In addition to considering the actual situation of both parties, according to the law, after the child reaches the age of 10, the child's opinion must be sought. Is it necessary for children under the age of 10 to listen to their personal opinions? The author believes that the judge should be free to decide according to the actual situation.

In the above case, the child has been living with the plaintiff, and the defendant wants the child. At the second hearing, the child wailed in the arms of the plaintiff, and stated that he did not want to live with his father. After questioning, the child said that the defendant often scolded her. One night a few months ago, she was scolded by the defendant, and she walked more than ten miles to the plaintiff's residence. Therefore, he is reluctant to live with the defendant. The defendant no longer insisted on guardianship after hearing.

It is an indisputable fact that children are becoming more and more intelligent due to a combination of material richness and eugenics. Children under the age of 10 already have a certain ability to distinguish right from wrong. Therefore, when necessary, children's opinions should be sought, and their opinions should be used as the main reference basis. In addition, divorce mediation can also adopt the following methods: First, explain the relevant laws and principles to both parties thoroughly, and let the parties measure the advantages and disadvantages themselves, so as to promote the parties to reach an agreement; and second, some flexible and diverse methods can be adopted. If necessary, bring relatives or unit personnel to the scene to participate in mediation.

In addition, during the mediation in court or the court investigation stage before mediation, the parties should be told to say what they want to say, and the parties should have a "feeling of release." Sometimes, the parties are not fighting for something, but they want to say everything in their hearts, especially to speak to the judge, get the judge's full understanding, and let the judge know that he is reasonable. In order to pursue "efficiency", some judges often interrupt the parties, so that the parties think that "the judge will not speak and go to the other party". This method is not enough. Only by allowing the parties to speak their minds can their peace of mind be achieved. Facilitates mediation and the judge is fully informed.

In the judge's mediation of divorce cases, there is such a phenomenon: when the plaintiff first sued for divorce, the first thought of the judges was that they were unwilling to judge the divorce. They started from a good faith attitude and wanted to give the parties a "buffer period", namely If the plaintiff agrees, the plaintiff will first withdraw the prosecution. Within half a year before the re-indictment, the two sides can work harder. If still unable to reconcile, the relationship has generally been broken, mediation or a divorce decision.

There is also a case where during the mediation process, both parties agreed to divorce, but no agreement could be reached on issues such as property, and the judge also believed that the property issue was difficult to find out, and it was difficult to judge or feel unfair based on the available evidence. When speaking with the plaintiff, the plaintiff believed that the time for divorce was not mature, so he filed a request for withdrawal and the judge allowed it.

The above two approaches are correct. Although emotional breakdown is the law's standard for divorce, this provision is actually very abstract and difficult to grasp. The judge advised to buffer the "cold treatment" as a method. Practice has proved that some plaintiffs did not re-sue after the withdrawal of the prosecution. Withdrawal of the prosecution due to property disputes, both parties calmed down and calmed down and thought over time. Many parties came to the court together after the negotiation and went through the divorce formalities. When the divorce was prosecuted again after 6 months, the mentality of both parties was much more peaceful than before, so it was better to solve the problem. Therefore, the author A "buffering" solution is considered desirable. ^[2]

Chapter IV Divorce

Article 32 If a man and a woman require a divorce, mediation may be conducted by the relevant department or a divorce lawsuit may be filed directly with the people's court.

When a divorce case is tried by a people's court, mediation shall be conducted; if the relationship does break down and mediation is invalid, divorce shall be granted.

Divorce should be granted if mediation fails in one of the following circumstances:

(1) Those who are bigamy or have a spouse living with others;

(2) committing domestic violence or abusing or abandoning family members;

(3) Those who have repeatedly taught bad habits such as gambling and drug use;

(4) Separated for two years due to emotional discord;

(5) Other situations that lead to the breakdown of the relationship between husband and wife.

If one party is declared missing and the other party files a divorce proceeding, divorce shall be granted.

Article 85 of the "Civil Procedure Law of the People's Republic of China" stipulates: "In the trial of civil cases, the people's courts shall, based on the principle of voluntary participation of the parties, distinguish between right and wrong, and conduct mediation."

Mediation of a divorce dispute if one of the parties to the marriage requests a divorce and the other does not. In order to ease the conflict between couples and reduce divorce, many countries have provisions on "reconciliation" and legal procedures for mediation. Some countries, such as France, Belgium, and the former Soviet Union, have specifically added mediation clauses in the chapter on divorce proceedings. Germany, France, etc. also have provisions to encourage mediation. The United Kingdom, Canada, and the United States require that the court consider all relevant factors in the divorce proceedings, including the spirit of principle of the possibility of mediation, and may appoint a mediation committee for mediation at the request of the parties. Japan has adopted mediation (mediation) doctrine for family cases. When the parties are unable to reach an agreement for divorce, they must apply to the family court for mediation before the lawsuit demands a divorce, conduct mediation, the mediation divorce is established, and a mediation letter is issued, which is called "mediation divorce." Mediation is an important and effective way to handle marriage disputes in China. Divorce mediation in China is divided into relevant departments' mediation of divorce disputes, that is, mediation outside the litigation, and people's court's mediation of divorce disputes, that is, mediation in divorce proceedings. ^[2]

According to Chinese law, mediation is a necessary procedure in divorce proceedings. However, in the specific judicial practice, many judges gradually feel that the provisions of the current marriage law and civil procedure law on the divorce mediation system are not perfect and specific, and there are still some problems to be solved.

Through trial practice, the current mediation system in divorce proceedings mainly has the following problems: First, the mediation system in divorce proceedings lacks the necessary organizational and procedural guarantees. Divorce mediation in our country is often performed by a contractor, but many times the judge only Knowledge of legal knowledge, not professionals in psychology, medicine, and sociology, to some extent, makes the effect of mediation unsatisfactory. Secondly, China's laws have no special requirements for the judges who preside over divorce mediation. When handling marriage cases, the age of the contractor, marriage experience, and social experience all have an important influence on the final mediation result. Third, there is no special divorce mediation system in China's current civil proceedings. Existing laws require divorce mediation, but no specific provisions are made. In particular, there is no specific time limit for divorce mediation. The principle states that sometimes it is not conducive to the conduct of mediation.

In response to the above problems, three countermeasures are proposed:

First, it is necessary to set a deadline for settlement in a divorce proceeding. We believe that it is necessary to provide for a divorce settlement procedure in the Civil Procedure Law or related judicial interpretations, that is, after the divorce proceedings have been accepted, on the basis of voluntary lawfulness, the parties should be given a reasonable time for calm consideration to avoid emotional diversion.

Second, the selection mechanism for judges involved in divorce proceedings will be gradually established. In the design of the divorce mediation system in China, we should be able to ensure that the judges participating in divorce proceedings have at least a certain family life experience, sense of marriage responsibility, necessary marriage experience, and richer social experience. At least they cannot be young fledgling judges.

Third, professionals are invited to participate in mediation with relevant units in divorce proceedings. The court may invite persons including professionals in psychology, medicine, and sociology to jointly participate in divorce mediation to maximize the effect of divorce mediation; the court may also invite relevant personnel of women's federations and specialized organizations engaged in child protection to participate in divorce proceedings. Mediation, with their rich work experience, protects the legitimate rights and interests of vulnerable groups as much as possible in the process of divorce mediation. ^[4]

(The people's court presided over the mediation during the trial)

() Minzi No.

Plaintiff: ... (specify basic information such as name or name)

Defendant: ... (specify basic information such as name or name)

The terms and basic conditions of the parties and other participants in the lawsuit are written in the same way as the civil judgment of the first instance. )

This court opened the case on ______ month ______ year ________ and accepted the plaintiff's ___________ (specify the case) case. According to law, the trial was conducted publicly (or privately) by a summary procedure. (State the parties' claims and brief facts)

During the trial of the case, the people's court presided over the mediation, and the parties voluntarily reached the following agreement:

... (specify the content of the agreement).

(state the burden of litigation costs).

Both parties have agreed that this mediation agreement shall have legal effect after both parties have signed or sealed it on the mediation agreement.

The aforesaid agreement does not violate the legal provisions, and this court confirms it.

Judge ___________

_______year month day

(Institute Seal)

Clerk ___________

Note:

1. This form is for use by the people's court when a party has requested mediation and reached a mediation agreement.

2. "Agreement content" means the terms of the agreement reached by the parties on a voluntary basis. The "burden of litigation costs", if settled by the two parties through negotiation, may be specified as the last item of the mediation agreement; if the litigation costs are determined by the people's court, a separate line should be written after the content of the agreement.

3 .; After the divorce mediation report has been verified by the clerk, it is stamped with the chapter "This is no different from the original". ^[2]

What Does a Divorce Mediator Do?

Divorce mediation

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