LSX has received a question from our customer: My family is involved in a civil dispute. Although we did not agree with the conciliation level set by the other party, the Court continued to reconcile many times. So, is it legal for the Court to do so, and is the court required to conduct mediation? According to current legal regulations, how many times should the court carry out conciliation before trial? Looking forward to having a lawyer help answer your questions.”
For people facing the same situation, please follow this article to get the answer for: “Conciliate how many times before trial in Vietnam?”
Legal ground
- Civil Procedures Code 2015
Does the court required to conduct mediation?
Mediation is a mandatory procedure during the trial preparation period. Article 10 of the Civil Procedure Code also states: “The Courts have the responsibility to conduct mediation and create favorable conditions for the involved parties to reach an agreement with one another on the resolution of civil cases under the provisions of this Code.”
The court must carry out mediation according to the principles specified in Clause 2, Article 205 of the 2015 Civil Procedure Code. Specifically as follows:
- Firstly, respect for the voluntary agreement of the involved parties, non-use of force or non-threat to use force to compel the involved parties to reach agreements against their will;
- Secondly, the contents of agreements between the involved parties must not contravene the law and social ethics.
Thus, the Court must mediate and create favorable conditions for the involved parties to reach an agreement – a fundamental principle in civil proceedings and conciliation brings benefits to both the litigants and the court.
Conciliate how many times before trial?
The above regulation has clearly stated the responsibility of the Court in conciliation and creating favorable conditions for the involved parties to reach an agreement. Current law does not specify the number of mediations that the court can conduct during the settlement of the case. However, according to the guidance of the Supreme People’s Court in subsection 14, section IV of the written response No. 01/2017 dated April 7, 2017, basically, the court can conduct conciliation many times.
In particular:
“In case the Court conducts conciliation many times, the first conciliation session must conducted in accordance with the order of the meeting to check the handover, access, publicity of evidence, and conciliation specified in Article 210 of the Civil Procedure Code 2015. For the next conciliation, the Court shall only inspect the handover, access, and disclosure of evidence when new documents and evidence available and recorded in the minutes of conciliation.
According to the provisions of Clause 2, Article 208 of the 2015 Civil Procedure Code; the case where the civil case is not conciliated or the mediation is not conducted is specified in Articles 206 and 207 of the 2015 Civil Procedure Code; the judge shall hold a meeting to examine the handover, access and disclosure of evidence without conducting conciliation.”
Cases in which conciliation procedures cannot be carried out or cannot be conciliated in civil proceedings
Under the Civil Procedures Code 2015:
Article 206. Civil lawsuits which must not be mediated
Claims for compensation for damage caused to State properties.
Civil lawsuits arising from civil transactions which are contrary to law or social ethics.
Article 207. Civil lawsuits which cannot be mediated
The defendants or the persons with relevant interests and duties are intentionally absent though having been duly summoned twice by courts.
The involved parties cannot take part in the mediation for plausible reasons.
The involved parties as wives or husbands in divorce cases have lost their civil act capacity.
One of the involved parties applies for non-mediation.
Procedures for conciliation
Procedures for mediation:
- Firstly, the Judges disseminate to involved parties the provisions of laws related to the resolution of the cases so that involved parties can relate them with their rights and obligations and analyze the legal consequence of the success of the mediation then voluntarily reach agreements with each other about the resolution of the cases;
- Secondly, plaintiff and defense counsels of their legitimate rights and interests make presentations of the disputes, make amendments of petitions for initiating lawsuits; grounds for protecting the petition, and express opinions about matters needing mediation and resolution of the cases (if any);
- Thirdly, defendants and defense counsels of their legitimate rights and interests make presentations of the claims of the plaintiffs and about counter-claims (if any); grounds for protesting against the petition of the plaintiffs; grounds for defending their counter claims and express opinions about matters needing mediation and resolution of the cases (if any);
- Fourthly, persons with relevant interests and duties, defense counsels of their legitimate rights and interests express their opinions about the claims of the plaintiffs and the defendants; present their independent claims (if any); grounds for protesting against the claims of the plaintiffs and the defendants; grounds for protecting their independent claims and express opinions about matters needing mediation and resolution of the cases (if any);
- Fifthly, other participants in the mediation meetings (if any) express their opinions;
- Then, when involved parties and defense counsels of their legitimate rights and interests have expressed their opinions, the Judges shall determine matters that involved parties have or have not agreed about and request involved parties to make an additional presentation about unclear and not agreed contents;
- Lastly, the Judges shall make a conclusion of those which involved parties have agreed or not agreed about.
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Related questions
Conciliation of the whole case;
Mediation a part of the case;
Mediation failed.
a) Date of meeting;
b) Place of meeting;
c) The participants in the meeting;
d) Opinions of involved parties or lawful representatives of involved parties about contents specified in clause 2 Article 210 of this Code;
dd) Other contents;
e) Decisions of the Court to accept or not accept claims of involved parties.
Firstly, Date of meeting;
Secondly, Place of meeting;
Thirdly, The participants in the meeting;
Fourthly, Opinions of involved parties and defense counsels of their legitimate rights and interests of involved parties;
Lastly, Contents have or have not been agreed by involved parties.
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