Vietnam: Advantages of resolving requests for a divorce by mutual consent through mediation procedures at the Court

1. Legal situation

Mr. Nguyen Van An and Mrs. Nguyen Thi Lanh got married in 2017. During their marriage, they had a child named Nguyen Thi Mo, born on February 8, 2018. In the middle of 2020, the couple started to have conflicts, so on January 5, 2021, they filed a request for civil resolution of their divorce by mutual with the following content: (1) Request for the court to recognize their divorce by mutual; (2) Agreement that Mrs. Lanh will take care of their shared child and Mr. An will not have to provide financial support for the child; (3) Shared assets and debts: none, so there is no need for the court to resolve.

The request is in accordance with the prescribed form and is accompanied by a declaration form and all necessary supporting documents as required by law. Both parties have the same legal purpose of terminating their marital relationship.

Based on the above legal situation, the author would like to present two different hypotheses regarding the choice of the resolution method in order to compare the procedures of the two methods, namely: (1) resolving the request for divorce by mutual through litigation proceedings; and (2) resolving the request for divorce by mutual through mediation procedures at the court. For the purpose of comparison, the author assumes that all courts have effectively implemented administrative and judicial reforms in receiving and handling petitions.

2. Resolving the request for divorce by mutual through litigation proceedings:

On January 5, 2021, Mr. An and Mrs. Lanh submitted their petition to the court, and both parties disagreed with the mediation procedure, which means the court has to resolve the case through litigation proceedings. The following procedures were carried out on the same day, January 5, 2021:

(1) The judicial administrative officer records the petition; prepares a report, and proposes to the Chief Judge to issue a confirmation letter regarding the choice of mediation and the selection of a mediator.

(2) Hand over the confirmation letter, the notification of the choice of mediation, and the selection of the mediator to the parties.

(3) Record the opinions of the parties regarding the non-selection of mediation.

(4) A judicial administrative officer drafts a decision assigning a judge to handle the case, to be signed by the Chief Judge.

(5) The judge notifies the requesting party to pay the civil resolution fee. Mr. An and Mrs. Lanh have paid the fee and handed over the receipt to the judge as required.

(6) The judicial administrative officer records the civil case.

(7) The judge issues a notice of the civil case and delivers it to the parties.

(8) The judge issues a summons for the mediation session for the parties (as issuing the summons on a different date may cause difficulties in delivery or incur expenses for the state budget for delivering the summons).

For example: in this case, the judge invites both parties to a mediation session on January 21, 2021. If both parties are present at the mediation session on January 21, 2021, and do not agree to reconcile, the judge will apply Article 397(4) of the Civil Procedure Code until January 29, 2021 (during the period from January 21 to January 28, 2021, both parties do not change their opinions compared to the mediation record on January 21, 2021). The judge will then issue a decision recognizing the divorce by mutual between Mr. An and Mrs. Lanh.

Comments:

- Regarding time: it takes 24 days from receiving the petition to resolving the request of the parties.

- Regarding costs: the parties have to pay a civil resolution fee of 300,000 VND.

- The parties need to make coordinated efforts with the judicial administrative officer, the Chief Judge, and the assigned judge.

- The purpose of both parties is achieved (legal effect of the decision recognizing the divorce by mutual).

3. Resolving the request for divorce by mutual through mediation procedures at the court

On January 5, 2021, Mr. An and Mrs. Lanh submitted their petition to the court, and the judicial administrative officer explained the law to them. Both parties agreed to choose the mediation procedure at the court, so the following procedures were carried out on the same day, January 5, 2021:

(1) The judicial administrative officer records the petition; prepares a report, and proposes to the Chief Judge to issue a confirmation letter regarding the choice of mediation and the selection of a mediator.

(2) Hand over the confirmation letter, the notification of the choice of mediation, and the selection of the mediator to the parties.

(3) Record the opinions of the parties regarding the choice of mediation and the selection of the mediator.

(4) The judicial administrative officer drafts a decision assigning a judge responsible for the mediation dialogue.

(5) The assigned judge issues a notice transferring the case to mediation at the court according to regulations.

(6) The mediator records the mediation session.

...

(Note: The translation is not complete. It appears to be a comparison between resolving a request for divorce by mutual through litigation proceedings and resolving it through mediation procedures at the court. The author provides a hypothetical scenario and outlines the procedures involved in each method. However, the translation is incomplete and ends abruptly. More information is needed to fully understand the author's analysis and conclusions.)

Next, the Mediator is selected to invite both parties to reconcile through phone calls using the phone numbers provided in the application form for reconciliation on January 11, 2021.

During the reconciliation session on January 11, 2021, both parties agreed to reconcile and proceed with an divorce by mutual. Therefore, the mediator invited both parties and invited the judge responsible for mediation dialogue to conduct a meeting to record the reconciliation results according to regulations. (The meeting to record the reconciliation results was held on the same day, January 11, 2021, but had to be coordinated with the working schedule of the judge responsible for mediation). Since both parties requested the recognition of the reconciliation results, the mediator transferred the minutes and accompanying documents to the Court for consideration to make a decision on recognizing the reconciliation results.

After receiving the minutes, the Judge will have a period of 15 days to prepare a decision on recognizing the reconciliation results from the date of receiving the minutes. Therefore, the Judge has the right to make a decision on recognizing the reconciliation results within a 15-day period from the date the Mediator transferred the minutes and accompanying evidence. For example, in this case, the Judge will make a decision on recognizing the reconciliation results (meaning recognizing the divorce by mutual of the parties) on January 20, 2021.

Comments:

- From receiving the application to completing the requests of the parties, it takes 15 days.
- In terms of costs, the parties do not incur any expenses.

- The parties need to make two trips to the Court.

- There needs to be smooth coordination between the judiciary administrative staff, the Chief Justice, the Judge responsible for mediation, and the Mediator.

- The purpose of the parties has been achieved (the legal effect of recognizing the reconciliation results).

4. General comments and evaluations

The advantages of using mediation procedures at the Court to settle requests for divorce by mutual compared to litigation are that the parties do not incur legal fees and the resolution time is shorter.

The mediation procedure at the Court will reduce the workload of the Judge and save time for studying case files, as the Mediator has already shared this responsibility. This creates favorable conditions for the Judge to focus on resolving other cases to ensure timely resolution of cases as required by law.

In addition, the mediation procedure at the Court has many other outstanding advantages: attracting high-quality human resources (Mediators), helping reduce the workload for the Court, contributing positively to promoting the good traditions of the nation, contributing to resolving conflicts, improving legal awareness of the people, preventing disputes in the future, creating consensus, and building unity among the people, contributing positively to the construction of a modern and civilized judiciary. From there, it contributes to the construction of a socialist state ruled by law in our country.

Based on the legal situation described above, it has demonstrated the new advantages of using mediation procedures to settle requests for divorce by mutual at the Court. Therefore, it is highly recommended that if individuals have disputes in civil or administrative matters, they consider prioritizing this new method of dispute resolution.

HUYNH MINH KHANH (Cai Be District People's Court, Tien Giang Province)

Source: "Tạp chí Toà Án" (Court Journal)

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