Vietnam: Applying the Law on Mediation and Dialogue in Court - Obstacles and shortcomings that need to be overcome

3. Regarding the right to choose reconciliation, dialogue, and the choice of a Mediator by the plaintiff and the petitioner in Vietnam

According to the provisions of Articles 4, 5, 6, and 8 of Article 16 of the Mediation Law, dialogue at the court always stipulates that in cases where the plaintiff or petitioner does not have an opinion on whether to agree or choose mediation and dialogue and choose a Mediator; and the defendant has no opinion on whether to agree or disagree to proceed with mediation and dialogue, the court will still assign a Judge to be responsible for mediation and dialogue, appoint a Mediator, and transfer the case to the mediation and dialogue procedure instead of automatically transferring the case for litigation.

Article 1 of Article 41 of the Mediation Law at the court stipulates: "The Mediator submits the petition and accompanying documents to the court that has received the petition for examination and jurisdiction over the case according to the provisions of the Code of Civil Procedure, the Code of Administrative Procedure in cases specified in paragraphs 2, 3, 4, and 5 of Article 40 of this Law..."

Paragraph 2 of Article 40 of the Mediation Law at the court stipulates regarding the termination of mediation and dialogue when one party or all parties do not agree to continue mediation and dialogue or are absent after being validly notified about mediation and dialogue.

If it is desired to transfer the petition for examination and jurisdiction according to the provisions of the Code of Civil Procedure and the Code of Administrative Procedure in cases where the party concerned has no opinion, it is necessary to go through all the procedures, like a mediation and dialogue case, when the party concerned agrees to mediation and dialogue. In practice, this also takes time for the assigned Judge and designated Mediator, and incurs expenses for the mediation and dialogue activities.

Therefore, it is necessary to change the provisions regarding cases where the plaintiff or petitioner, after being notified for the second time about the right to choose mediation, dialogue, or a Mediator, still does not provide an answer. In such cases, the petition should be automatically transferred for examination and jurisdiction according to the provisions of the Code of Civil Procedure, the Code of Administrative Procedure.

4. Provisions on mechanisms to promote the increase in the number of petitions transferred for mediation and dialogue procedures in Vietnam

The Mediation Law at the court has been legally effective, however, in order for the benefits of the mediation and dialogue mechanisms for the people to be clearly understood, it mostly relies on the officers assigned to handle the dissemination of petitions to the people. The dissemination work will be subjective, depending on the viewpoint and perception of the disseminator, in addition to being somewhat influenced by the advice of lawyers and those who protect the legal rights and interests of the parties. Most cases that are transferred to the mediation and dialogue procedures are mostly cases requesting amicable divorce, divorce disputes, child custody, and a few simple civil disputes, such as contract disputes.

Therefore, it is necessary to strengthen propaganda and dissemination work to help the people understand the benefits of mediation and dialogue at the court in comparison to litigation, further contribute to making the Mediation Law at the court truly the fastest and most effective method of resolving cases, and at the same time help reduce the number of disputes settled through litigation procedures, reduce pressure, and save time for litigants.

It is recommended that the Supreme People's Court provide guidance on whether to recognize or not to recognize the results of mediation and dialogue at the court as part of the statistics of the cases resolved by each Judge and in general for all courts or not.

The above are some difficulties and shortcomings in the application of the Mediation Law at the court. We hope to receive exchanges and suggestions from readers.

NGUYEN THAI NAM (People's Court of Ia Grai District, Gia Lai Province)

Source: Tạp chí Tòa án nhân dân điện tử ("Electronic People's Court Magazine")