First, the ethical basis of mediation
There is a natural internal relationship between law and ethics. Legal norms come from morality, and the formation, development and perfection of specific legal rules based on morality are almost all the products of ethics. As a legal system, mediation naturally has the ethical spirit of humanity, justice and harmony.
(A) Human nature
Human nature is a problem that social science will talk about, and different people have different understandings and understandings of it. Marx thought that human nature should be grasped from "human needs", Rousseau thought that "human nature is the first rule to safeguard one's own survival", Adam Smith thought that the greatest misfortune of human beings was the undue loss of reputation, and Patrick Henry emphasized the importance of freedom. In fact, the survival, reputation and freedom they mentioned are the most basic needs of people. In addition, respect and development also belong to people's basic needs, so to speak,&; Some people are K's basic human nature. The design of any system is reasonable and scientific only if it meets these needs. Of course, as an important system in a society ruled by law, mediation should conform to human nature, because "rules are feasible only if they conform to human nature." "A In order to conform to human nature, we must give them full respect and try our best to meet their respective reasonable basic needs. However, due to the scarcity of resources, it is impossible for both parties to the dispute to obtain the maximum benefits at the same time. Therefore, mediation should be used to balance the interests of both parties and then resolve disputes.
(2) Justice
The pursuit of law is to maintain social fairness and justice, and ethics also contains the concept of justice. Justice is an ancient and often new concept. According to the dialectical unity principle of Marxism, justice is the unity of subjectivity and objectivity, and justice is also the unity of consistency and inconsistency. Justice has different contents and manifestations in different time and space, but the basic bottom line of the spirit of justice will not change substantially. Modern society is based on the same bottom line of value, and justice can only be achieved through a good legal system. As a legal system of non-litigation dispute resolution, mediation can promote and guarantee justice by resolving disputes between parties.
(3) Harmony
Harmony is the highest value goal of human and social survival and development. Historical experience has proved that social economic and cultural progress must be based on a stable and peaceful social order. The concepts of "harmony but difference" and "harmony between man and nature" in traditional society have been influenced so far, which shows that human society has never stopped pursuing harmony. A harmonious society needs not only explicit norms such as various legal systems, but also implicit norms such as morality and habits. The harmonious society we are building should be democratic and legal, fair and just, honest and friendly, full of vitality, stable and orderly, and people and themselves &; A harmonious society. Harmonious spirit contained in mediation &; It is particularly prominent in the settlement of disputes in reality, not only in form, but also in the final result. As a non-litigation dispute resolution mechanism, mediation is of great significance for maintaining social stability and harmony.
Second, the ethical requirements in mediation.
(A) the professional ethics of mediators
(1) confidentiality
Confidentiality means that as a mediator, the privacy of the parties should be reasonably maintained according to the specific circumstances of mediation and the wishes of the parties. The mediator shall not disclose information that either party considers confidential and should keep confidential, unless such secrets and information must be made public according to law. The mediator shall discuss with both parties their requirements and expectations on the content, scope and degree of confidentiality. Should I agree to use these rules? Decide on matters that need to be kept confidential and related matters. In the process of mediation, both parties have the right to make their own confidentiality clauses or accept the relevant rules related to confidentiality formulated by the mediator or his mediation institution. Any confidential information disclosed during mediation shall not be disclosed or used as evidence in subsequent arbitration or litigation.
(2) Justice
The impartiality of the mediator means that the mediator should not be inclined to any party to the dispute, nor should he be biased or have any interest relationship with any party to the dispute. The mediator should keep an "equal distance" from the parties conceptually and concretely. At any time, if the mediator can't guarantee that his or her behavior in the mediation process is fair, then he or she has the obligation to quit mediation in time. It is worth mentioning that the standard of fairness cannot be simply unified into a single standard of behavior, but must be analyzed, handled and treated according to individual cases in a specific context.
(3) Ability
Competency means that the mediator who is responsible for and completes the mediation work must have the necessary qualifications to meet the reasonable expectations of the parties on the quality of mediation. If the parties are satisfied with the person's qualifications, anyone can be elected as a mediator. Of course, only competent mediators can complete mediation more effectively and meet the expectations of the parties and the public for mediation as an effective way to resolve disputes. Mediators should also let the parties know their professional training, educational background and professional experience, so that the parties themselves can judge whether mediators are competent and well-trained for specific dispute cases. This information about mediators should be made public for people's reference and search.
(4) Other requirements
In addition to the above three important professional ethics requirements, mediators should also abide by the following standards: (1) the principle of neutrality means that mediators can not have interests involved in mediating disputes; 2) Integrity When introducing mediation level, education, training and mediation expertise to the public, mediators should be honest; 3) self-determination. Mediation occurs and develops according to the subjective will of the parties, and the mediator should mediate on the basis of the parties' autonomy; 4) reasonable. Mediators should transparently announce and explain the salary level, various expenses and asking price for the parties; 5) Coordinating Mediators I should pay attention to establishing good relations with other professional consultants and other mediators and experts, which is of great benefit to their mediation practice; The mediator should operate the mediation process in a procedural and fair manner.
(2) Morality of both parties
The ethical issues in mediation include not only the ethical issues of the mediator, but also the ethical issues of both parties. The moral requirements of both parties are as follows:
(1) Principle of good faith
Honesty and credit is a basic moral bottom line requirement of market economy activities, and it is also a legal norm with moral connotation (specifically, in mediation, both parties should also follow the principle of honesty and credit. First, mediation must be based on the goodwill of both parties to the dispute, and it is forbidden to form an improper mediation state by deception. Second, since the two sides have chosen mediation, they have the obligation to truthfully state it, and only the two sides can truthfully state it. Controversial facts can be clarified and controversial disputes can be finally resolved. Although some countries in the world do not regard the principle of good faith as a general provision of law, they do have relevant provisions on true obligations. Finally, if all parties are committed to mediation, they should not break their promises. Now that a mediation agreement has been reached, we can't go back on our word and refuse to perform the mediation agreement. Of course, mediation must be conducted in accordance with legal procedures on the premise of mutual willingness.
(2) the principle of mutual understanding and accommodation
The principle of mutual understanding and accommodation is an important principle to maintain social stability and unity, and it is also the main way to deal with interpersonal contradictions. Since both sides have chosen mediation, it means that they have given up too fierce confrontation and are willing to settle the dispute by peaceful means. In specific mediation, both parties should uphold the principle of mutual understanding and mutual accommodation to resolve disputes, and neither party can force the other party to accept a seriously unfair mediation agreement by virtue of its political status and economic advantages. In order to finally solve the dispute, both sides should give up some personal interests when necessary, otherwise, if both sides don't give in to each other, there is no way to solve the dispute (mutual understanding and mutual benefit require both sides to respect each other in mediation, and they can't maliciously slander each other, and the dispute can only be solved satisfactorily through mutual respect.
Third, the current ethical dilemma of mediation in China
(A) the lack of integrity of some parties, the pursuit of maximizing personal interests.
China, known as the country of etiquette, has a broad traditional moral foundation. However, with the rapid development of market economy today, people pay more and more attention to the pursuit of interests. Some people even distort their own values and morality, and they should pursue the maximization of interests in everything. In the practice of Scheme D, it is often that the two parties to the dispute start from their own interests, oppose each other, refuse to make concessions, or go back on their word after reaching an agreement, which leads to the time-consuming and laborious mediation work and seriously affects the exertion of the mediation function (pursuing interests is one of human nature, and it is understandable to pursue the maximization of their own interests, but it is immoral or even illegal to pursue the maximization of interests improperly. The main manifestations are as follows: First, the defendant pursues his own interests excessively, which leads to the legal form of mediation rather than the truth. In mediation practice, sacrificing part of the plaintiff's interests is often the condition for reaching mediation; Second, the two sides mediate maliciously, transfer property smoothly, evade legal responsibilities, evade obligations, obtain improper benefits, and harm the legitimate rights and interests of third parties, even the collective and national interests.
(2) The professional quality and moral quality of some mediators are low.
In the concrete mediation practice in China, some mediators despise mediation work and lack patience, thinking that mediation work has low technical content and no identity and status; Furthermore, people's mediation adheres to the principle of free, and the remuneration of mediators is generally low. This leads to some mediators' lack of professional awareness, weak subjective initiative and unwillingness to learn and improve in the face of the new situation, which affects the handling of disputes. The key to this kind of problem lies in the following aspects: firstly, China lacks a strict mediator qualification access system and regular training system, which leads to a large number of unqualified personnel entering this field. The low threshold directly leads to the uneven quality of mediators, which seriously affects the full play of mediation in practical work. Second, China lacks a good institutional environment for the development of mediators, and the low salary leads to people's low enthusiasm for mediation, which seriously limits the mediation function. Thirdly, the lack of effective supervision and restriction mechanism can not fully guarantee the mediator to perform his duties seriously, and then affect the mediator's subjective initiative.
(3) Some judges unilaterally pursue the conclusion of litigation.
In recent years, a very prominent problem in judicial practice is that some judges can't correctly understand and understand the nature and status of mediation system and its important role in resolving social disputes, and their mediation consciousness is weak and the mediation rate is low. At the same time, the court's one-sided pursuit of the rate of sentencing in court also weakened the judge's awareness of mediation. In recent years, the professional quality of legal workers is getting higher and higher, but some judicial personnel have an idealistic judicial tendency to some extent. They are eager to promote justice through confrontational trials, so they are not keen on mediation. Especially for newcomers who have just entered the judicial system, it is more prominent. The younger you are, the more obvious this tendency is.
Fourth, specific suggestions to solve the ethical problems in mediation work in China.
(A) to strengthen the education and training of mediators' professional ethics and social morality
First of all, we should improve the qualification access system, strictly control the access threshold and pay attention to regular training. Relevant departments should formulate scientific, reasonable and fair recruitment procedures, improve the access conditions for mediators, revise and improve relevant mediation regulations, and strive to hire people with high scientific and cultural knowledge, systematic legal education or legal work experience, familiar with legal policies, master certain mediation procedures, have certain mediation skills and love people's mediation work as mediators. For some judges who are not good at mediating disputes, we should educate and train them in social ethics knowledge, so that they can use social ethics to analyze problems, judge good and evil and solve disputes according to the hearts of the parties in case mediation.
Secondly, it is necessary to educate judges, people's mediators and those who undertake mediation work in professional ethics, instill in them the moral principles and norms advocated by socialist core values, and cultivate and improve their ideological and moral cultivation. Good moral cultivation is not innate or spontaneous, but gradually formed through education. In view of the lack of ethics of mediators today, it is necessary and necessary to carry out ethical education.
(two) to strengthen the requirements and institutionalization of honesty and trustworthiness of the parties.
In modern society, honesty and trustworthiness is the basic principle of civil procedure law. In the process of interpersonal communication, only by telling the other party to be honest and trustworthy can we maintain the harmony of interpersonal relationships (specifically, the requirements for the integrity of the mediation parties are: First, the parties shall not reach an agreement by fraudulent means, and shall not resort to deception in mediation, maliciously deceive the mediator and the other party and outsiders. Secondly, the two sides of mediation can obey mediation, understand humility, reach an understanding, keep promises and solve problems as the starting point, and can automatically perform mediation and negotiate against malicious mediation. On the one hand, we can adopt the method of moral restraint, that is, in the process of mediation, we can take concrete measures to strengthen the requirements of honesty, such as drawing lessons from the method of signing a letter of commitment of honesty widely used in society to promote the integrity and self-discipline of the parties; On the other hand, relevant laws and regulations should be improved, such as adding penalty clauses for malicious mediation, ensuring that there are laws to follow, cracking down on malicious mediation, and clarifying the responsibilities of judges involved in malicious mediation.
(C) to create a good institutional environment for the survival and development of mediators
The degree of occupational security should be adapted to the role of the profession in social life, occupational risks and working environment. To build a professional team of mediators in international relations, we must provide them with reliable professional security and create a good institutional environment. To this end, measures can be taken from three aspects: first, fully protect the professional identity and status of mediators, and ensure that mediators will not be dismissed, demoted, dismissed or punished by illegal procedures or reasons after being hired; Second, fully protect the professional rights of mediators and ensure that their normal mediation work is not subject to external or internal administrative interference; Third, ensure that mediators have considerable professional treatment, which should include basic living security, welfare treatment and good career development prospects. A good institutional environment plays an important role in ensuring the personal survival and development of mediators and improving their work enthusiasm and creativity.
Verb (abbreviation of verb) conclusion
Mediation system has a long history in China, and it can last for a long time because it is compatible with emotion, reason and law, and perfectly combines the rigidity of law with the flexibility of reason, which not only conforms to the traditional habit of attaching importance to human feelings in China, but also conforms to the trend of building a harmonious socialist society. Although there are many ethical problems in China's mediation work, based on the national conditions, we can standardize it through laws and ethics, and gradually develop and improve it.
;