Mediation at the grassroots level is a fine tradition and moral principle of the Vietnamese people. It operates for the benefit of everyone based on social ethics and the law, aiming to resolve conflicts and disputes arising from grassroots levels on a voluntary basis. Through this, it contributes to the stabilization of order and security from the grassroots level.
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This is a highly humane activity that has been institutionalized into law. Currently, to regulate this activity, the National Assembly has enacted the Law on Grassroots Mediation 2013. The establishment of this Law marks a significant step forward for grassroots mediation, where mediators guide and assist parties in reaching agreements, voluntarily resolving conflicts, disputes, and legal violations according to regulations.
To define the scope of mediation, Article 3 of the Law stipulates that grassroots mediation is conducted for conflicts, disputes, and legal violations, except in cases of conflicts or disputes infringing on the interests of the State or public interest, legal violations in marriage and family, civil transactions which, according to the civil procedure law, are non-mediation; legal violations which must be prosecuted for criminal responsibility or subjected to administrative sanctions. The scope of grassroots mediation is also further detailed in Decree 15/2014/ND-CP dated February 27, 2014, by the Government of Vietnam, which specifies certain articles and measures to implement the Law on Grassroots Mediation. Article 5 of this Decree clearly stipulates the conflicts, disputes, and legal violations that may or may not be mediated. Essentially, these provisions are quite clear and have provided a legal basis for facilitating their practical implementation in recent times.
However, regarding the content "mediation is allowed for legal violations that, according to the regulations, have not reached the level of being prosecuted for criminal responsibility or being subjected to administrative sanctions" and "mediation is not allowed for legal violations that require prosecution for criminal responsibility or being subjected to administrative sanctions" stipulated in the two documents mentioned above, it remains challenging to determine in practice. This ambiguity has led to various interpretations, queries, and disputes, specifically:
Firstly, how to determine the degree of legal violation?
Upon glancing at the above regulations, it is clear that "mediation is allowed for legal violations that, according to the law, have not reached the level of prosecution for criminal responsibility or administrative sanctions" and "mediations are not allowed for legal violations that require prosecution for criminal responsibility or being subjected to administrative sanctions," means that mediators can accept to mediate for violations that do not reach the level of prosecution for criminal responsibility or administrative sanctions. Conversely, mediation is not accepted for violations requiring prosecution for criminal responsibility or administrative sanctions.
The problem is, when receiving a mediation case, how can one determine whether the case involves a legal violation that has not reached or must reach the level of prosecution for criminal responsibility or administrative sanctions to accept or refuse the mediation case? Can mediators make this assessment independently and have sufficient authority to decide? What are the criteria for this assessment? If the assessment is incorrect, leading to mediation for a legal violation that should be subject to prosecution for criminal responsibility or administrative sanctions or rejecting a case that has not reached the level of prosecution for criminal responsibility or administrative sanctions, how should the consequences be handled?
Relating to these questions, currently Article 7, Decree 15/2014/ND-CP guides the determination of the scope of grassroots mediation as "If it is unclear whether a case or matter falls under grassroots mediation, the mediator shall request guidance from the Judicial – Civil Status official." However, we believe that this guidance is still general and difficult to implement in practice because, firstly, the manner of coordination and requesting guidance from the Judicial – Civil Status official has not been regulated; secondly, even the Judicial – Civil Status official may not have sufficient basis and authority to affirm whether a case requires prosecution for criminal responsibility or administrative sanctions merely by comparing legal documents.
Here is a specific example:
Example: Mr. A and Mr. B have a conflict leading to a fight, causing injuries. In this case, to conclude whether the matter reaches the level of criminal and administrative handling, it cannot be subjectively assumed, given that criminal handling must comply with procedural rules, such as initiating a case to investigate and clarify the actions of each party, conducting assessments to determine the injury rate, etc. Similarly, for administrative sanctions, the competent authority must document the violation to establish a basis for handling. Therefore, if the mediator or Judicial – Civil Status official independently determines the case subjectively according to legal regulations, it may not guarantee the legal basis to affirm whether the matter falls within mediation scope or not (?).
Secondly, if a case is determined to have legal violations requiring prosecution for criminal responsibility or administrative sanctions, is mediation entirely prohibited?
A legal violation involves multiple relationships, including civil relations between the parties, criminal relations between the State and the violator, administrative relations between the competent state management agency and the citizen when the latter violates administrative order or infringes on the interests of individuals, organizations, the State, and the social community protected by the State. Each type of relationship will generate corresponding legal responsibilities, specifically: civil liability arises in civil relations between parties (compensation, apology...); criminal liability arises in criminal relations; and corresponding legal responsibility arises in administrative relations under the regulations. Each type of relationship is regulated by a specific group of legal relations and procedures.
So, how should "legal violations requiring prosecution for criminal responsibility or administrative sanctions not be mediated" be understood? Does it mean that the entire case, including civil, criminal, and administrative relations arising from it, cannot be mediated? Currently, most opinions incline towards this interpretation and may refuse to mediate cases.
However, we believe that if such a case occurs, mediators can still mediate civil conflicts and disputes between the parties arising from the case; the law only prohibits mediation between the violator and the State due to the act infringing on the public order and interests protected by the State. In other words, the State only disallows mediation to exempt criminal or administrative responsibilities due to a legal violation. Civil conflicts and disputes require encouragement for mediation to foster reconciliation, end estrangements, and heal feelings between parties—factors that can minimize new conflicts. This is the core objective of the grassroots mediation law. If a mediator can mediate the civil conflicts and disputes between parties, it is lawful and should be encouraged because they only mediate civilly, without intervening in the criminal and administrative legal responsibilities with the State. Thus, if a violator undergoes civil mediation, they still face legal responsibilities with the State if the act infringes on the public order or interests protected by the State. Here is a specific example to clarify this argument.
Example 1: Production facility A discharges waste, causing environmental pollution around the residential area, leading to conflicts and disputes with neighboring households and infringing on the administrative order managed by the State, which necessitates administrative sanctions. Thus, this case has two relationships to be resolved: one, civil relations between the facility and neighboring households (households may file lawsuits for damage compensation); and two, administrative relations between the State and the facility.
In this case, a mediator can mediate conflicts and disputes between the production facility and households to end conflicts and guide the parties to voluntary agreements (compensation, ...,), preventing potential lawsuits in court. However, the facility's administrative legal responsibility with the State remains, as its act violated the State-managed administrative order. Therefore, while the mediator can resolve the civil disputes, the State can still handle the administrative responsibility according to regulations. Conversely, if the case is not mediated, even if the State addresses the administrative aspect, conflicts and disputes between the facility and households persist, posing a risk of new conflicts.
Example 2: Mr. A intentionally injures Mr. B. Suppose this act, according to the law, must be prosecuted criminally. However, if only criminal handling is pursued without civil mediation between the parties, conflicts and estrangements remain. Conversely, if civil mediation is allowed, the mediator helps the parties reach civil agreements, thus averting escalating conflicts without eliminating Mr. A's criminal responsibility.
Therefore, we assert that in all legal violations, the parties can self-negotiate and mediate civilly, while responsibilities with the State remain for acts infringing on the interests of the public and social community protected by the State. Should the stipulation "no mediation for legal violations requiring prosecution for criminal responsibility or administrative sanctions" in the Law on Grassroots Mediation and Decree 15/2014/ND-CP be understood this way?
Grassroots mediation is a sound policy of the Communist Party and our State, which has been translated into law. This activity is being actively promoted by local governments through mediators to resolve conflicts and disputes at the grassroots level voluntarily, thus contributing to local security and order stabilization. Therefore, it is suggested that the competent agencies issue more specific guidance on the aforementioned issues for the relevant agencies and organizations, particularly the mediators, to understand and apply uniformly.
Hoang Trong Hung
Source: Ministry of Justice
