论调解中强制性因素-诉讼法学专业论文.docxVIP

1 1 2 2 Abstract On the basis of reaching consensus, mediation leads the role of resolving disputes automatically. As a desirable type of dispute resolution, mediation shall give full play to the partys independence ability while forming a consensus. Sometimes, however, it is not enough for only to rely on independent ability. It might lead to some problems for not interfering the absolute negotiation and deals among all parties on the issues of the rights and interests, such as oppressing the weak, hard to repair the damaged social relations or metamorphism gets desired and so on. Therefore, in order to realize some value targets, the operator of mediation system may sacrifice certain consensuses, inject certain mandatory factors in the mediation and make necessary intervention to the process and results to ensure dispute resolution accord with the legal, ethical and social public interests, thus to ensure the society to be stable. In mediation, mandatory factor refers to the factors violating to the parties’consensuses. It may be based on national mandatory requirements, it could be a mediator’s considerations based on public interests, political interests, ethical requirements, the third party’s interests and so on. Through mandatory factors, to some extent, to make the mediation integrate with the social better, in line with social norms and social aspirations. Mediation is a form of social behavior, a social way of dispute resolution. The mandatory factors which are based on social interests and institutional arrangements must exist. Mandatory factors in mediation can be expressed as procedural arrangements, carried out to better resolve disputes in the mediation process, and also to make the results of the mediation enforceable, not to obey the will of the parties. In mediation, the enforcement of result is essentially procedural arrangements, its uniqueness lies in the parties shall execute the final result. We should be rational and objective look at the exi