15/03/2024 10:43

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

INDEX OF THE ARTICLE

1. Procedures for handling filed lawsuits in Vietnam
2. Regarding the procedures for issuing and delivering documents
3. Regarding the right to choose reconciliation, dialogue, and the choice of a Mediator by the plaintiff and the petitioner in Vietnam
4. Provisions on mechanisms to promote the increase in the number of petitions transferred for mediation and dialogue procedures in Vietnam

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

The Law on Mediation and Dialogue at the Court of Vietnam has been in effect since January 1, 2021, and has been implemented for over a year. However, the number of appointed mediators, the number of filed lawsuits, and the number of cases transferred to mediation and dialogue procedures only account for a small percentage of the total number of cases resolved at the Court.

The benefits of the Law on Mediation and Dialogue at the Court are evident, such as cost savings, saving the efforts and time of citizens, ensuring the confidentiality of personal information, providing a conducive environment for the parties involved in mediation and dialogue to reach agreements, helping to alleviate tensions in relationships, and ultimately, the mediated and dialogued outcomes will be recognized by the Court if requested, and this recognition will have the same enforceability as judgments and decisions in civil cases resolved through litigation procedures. However, there are also obstacles and shortcomings that need to be addressed in the practical application of the Law on Mediation and Dialogue at the Court.

1. Procedures for handling filed lawsuits in Vietnam

According to Article 16, Clause 3 of the Law on Mediation and Dialogue at the Court, it states: "Within a period of 2 working days from the date of receiving the filed lawsuit or request, if it does not fall under any of the cases specified in Clauses 1, 2, 4, 6, and 7 of Article 19 of this Law, the Court shall notify the plaintiff or requester in writing about their right to choose mediation, dialogue, and the selection of a mediator in accordance with this Law."

The Law does not specify how to handle cases that require amendments or supplements to the filed lawsuit or request due to errors or deficiencies in the form and content of the documents. After receiving the lawsuit or request, the Chief Justice assigns a Judge to be responsible for mediation and dialogue, and the appointed Judge participates in the meeting to record the mediation and dialogue results, confirming them in the record. On the other hand, there is no provision that mediators must request the plaintiff or requester to amend or supplement the lawsuit.

Therefore, after receiving the filed lawsuit or request, if it does not meet the requirements specified in Article 189, Clause 4 of the Civil Procedure Code (regarding the form and content of the filed lawsuit), the Court does not require amendments or supplements to be made to the lawsuit or request, but must inform the plaintiff or requester in writing about their right to choose mediation, dialogue, and the selection of a mediator.

This affects the research of documents, the development of mediation and dialogue plans and solutions by mediators, as mediators will not be able to know the specific requirements of the plaintiff or requester.

Therefore, it is necessary to supplement the procedures for handling filed lawsuits and requests in the Law on Mediation and Dialogue at the Court.

2. Regarding the procedures for issuing and delivering documents

The Law on Mediation and Dialogue at the Court does not have any provisions or guidelines regarding the procedures for issuing and delivering documents to the parties involved. On the other hand, mediation and dialogue are conducted before the Court assumes jurisdiction over civil disputes, marriage and family disputes, business and commercial disputes, labor disputes, requests for divorce by mutual consent; administrative cases under the jurisdiction of the Court according to the provisions of the Civil Procedure Code and the Administrative Litigation Law. Therefore, it is not possible to apply the provisions in Chapter X, "Issuance, delivery, and notification of procedural documents" of the Civil Procedure Code to serve the purpose of delivering documents during mediation and dialogue.

At the same time, the Law on Mediation and Dialogue at the Court also does not regulate the assignment of a Secretary for the activities of mediation and dialogue. So, is it the responsibility of the assigned Judge or the designated mediator to issue and deliver documents related to mediation and dialogue?

Therefore, it is necessary to specify the procedures for issuing and delivering documents in the Law on Mediation and Dialogue at the Court.

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")

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