Based on the humanitarian significance of allowing spouses to thoroughly re-examine the situation, the principle of mediation in divorce proceedings is a mandatory procedure to help both parties avoid any regrets in the future.
Article table of contents
Vietnam: Remarks upon mediation during divorce proceedings (illustration)
1. What is mediation?
Mediation is the resolution of disputes or disagreements between two or more parties by allowing the parties to negotiate and settle among themselves with the participation of a third party (who is not a disputing party). The disputing parties voluntarily participate; they mutually agree on the measures to resolve the dispute with the support of a neutral third party. According to legal provisions, mediation is a mandatory procedure for divorce cases, and there are two forms of mediation in divorce: grassroots-level mediation and court mediation.
Firstly, regarding grassroots-level mediation:
According to the Law on Marriage and Family, agencies and organizations shall promptly mediate family conflicts and protect the legitimate rights and interests of family members. Specifically, Article 52 of the Law on Marriage and Family 2014 stipulates that the State and society shall encourage grassroots-level mediation when a husband or wife requests a divorce. The mediation must comply with the law on grassroots-level mediation. However, grassroots-level mediation is not mandatory under Article 4 of the Law on grassroots-level mediation 2013.
Second, regarding court mediation:
If grassroots-level mediation fails or is not carried out, after the divorce petition is filed and accepted, the court will conduct mediation according to legal provisions on civil procedures. In court divorce mediation, the court, as a third party, will attempt to persuade the husband and wife to mend their marital relationship, thereby saving costs and minimizing the impact on children when parents divorce and maintaining the purpose of marriage.
During the period of preparing for the first instance trial, the court will conduct mediation to allow the parties to mutually agree on the resolution of the case, except for cases that cannot be conciliated, not conciliated, or resolved under summary procedures. Furthermore, divorce cases are mandatory for mediation even when both parties mutually agree to divorce.
The law does not specify the number of mediations required in a unilateral or mutually agreed divorce case. In practice, mediation can occur 2-3 times. If mediation fails, the court will bring the case to trial to determine whether divorce is granted.
2. What are the cases of divorce without mediation in Vietnam?
Although the Law on Marriage and Family mandates mediation before divorce, in practice, there are still cases where divorce is resolved without mediation when the civil case cannot be conciliable under Article 207 of the Civil Procedure Code 2015:
- 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 being wives or husbands in divorce cases have lost their civil act capacity.
- One of involved parties applies for non-mediation.
Therefore, under the regulations on non-mediation cases, the parties may apply not to proceed with mediation when filing for unilateral divorce. However, doing so does not guarantee that the resolution time for divorce will be quicker because it depends on the court's processing. Thus, the parties should consider carefully.
Legal basis:
- Law on grassroots-level mediation 2013
- Law on Marriage and Family 2014
Long Binh
