Who is the mediator at the Court? Requirements for appointment of mediators in Vietnam

Who is the mediator at the Court? Requirements for appointment of mediators in Vietnam

1. Who is the mediator at the Court?

Clause 1, Article 3 of the Law on mediation or dialogue at the Court 2020 stipulates the mediator at the Court as follows:

 “Mediator at court” (hereinafter referred to as mediator) means a person who is eligible and appointed by the Chief Judge of the People's Court of province to mediate disputes over civil matters, marriage and family, business, commerce, labor, requests for recognition of amicable divorce (hereinafter referred to as civil cases) and dialogues for administrative lawsuits in accordance with the Law on mediation or dialogue at the Court 2020.

2. Requirements for appointment of mediators in Vietnam

In Article 10 of the Law on mediation or dialogue at the Court 2020, the requirements for appointment of mediators in Vietnam are as follows:

- A Vietnamese citizen who is permanently residing in Vietnam, loyal to the Fatherland and the Constitution of the Socialist Republic of Vietnam, has full legal capacity, good moral qualities, is exemplary in the observance of the law and meets all requirements below may be appointed as a mediator:

- Used to be a Judge, Court Examiner, Court Clerk, Procurator, Procurator Inspector, Civil Judgment Executor, Inspector; having at least 10 years of experience as a lawyer, expert, or professional;

Being knowledgeable about customs and traditions and having prestige in the community;

- Having experience and skills in mediation or dialogue;

- Attaining fitness to complete the assigned tasks;

- Possessing a certificate of professional training in mediation or dialogue conducted by a training facility of the Supreme People's Court, unless he/she has been a judge;

Court examiner of chief examiner or senior examiner level, court clerk of chief clerk or senior clerk level, procurator, executor of civil judgment, or inspector.

- A person who falls into one of the following cases may not be appointed as a mediator:

+ Failing to meet the requirements specified above;

+ Having been an official or public employee; commissioned officer or non-commissioned officer of the People's Army, professional solider, worker and defense officer; People's Public Security commissioned officer or non-commissioned officer, or police worker.

3.  Appointment of mediators in Vietnam

In Article 11 of the Law on mediation or dialogue at the Court 2020 provides for the appointment of mediators as follows:

3.1. Application for appointment of a mediator in Vietnam

- An application for appointment of a mediator comprises:

+ An application form for appointment;

+ A curriculum vitae and police (clearance) certificate;

+ A fitness to work certificate issued by a competent health authority;

+ A proof of eligibility prescribed at Point a, Clause 1, Article 10 of Law on mediation or dialogue at the Court 2020;

+ A certificate of professional training in mediation or dialogue prescribed at Point d, Clause 1, Article 10 of Law on mediation or dialogue at the Court 2020.

3.2. Procedures for appointment of a mediator in Vietnam

Step 1:

A person who finds himself/herself satisfactory with all the requirements specified in Clause 1, Article 10 of this Law may submit an application for appointment of mediator to the court where he/she wishes to act as a mediator.

Step 2:

Based on the need to appoint a mediator, the court which receives an application for appointment of mediator shall choose a qualified person and then request the chief judge of the People’s Court of province to consider appointment.

Within 20 days after receiving a duly complete application for appointment of mediator, the chief judge of the People’s Court of province shall consider appointing a mediator; if the application is refused, the chief judge must provide explanation in writing.

Step 3:

Within 7 days after issuing the appointment decision, the chief judge of the People’s Court of province shall publish the list of mediators on the website of the People’s Court of province and post up at the head office of the court where the mediator has worked; and at the same time send it to the Supreme People's Court for publication on the web portal of the Supreme People's Court.

* The term of office of a mediator is 3 years from the date of appointment.

4. Rights and obligations of the mediator in Vietnam

Rights and obligations of mediators are specified in Article 14 of the Law on mediation or dialogue at the Court 2020 as follows:

4.1. Rights of the mediator in Vietnam

Mediators have the following rights:

- Conduct mediation for civil cases, dialogue for administrative lawsuits in accordance with Law on mediation or dialogue at the Court 2020;

- Request the parties to provide information, documents and evidence related to the content of the dispute and lawsuit; other relevant information and documents necessary for mediation or dialogue;

- Examine the current conditions of assets related to the dispute or lawsuit before making a record on the outcome of the mediation or dialogue at the request of either party;

- Invite prestigious persons to participate in mediation or dialogue; consult with entities with expertise in the field related to the dispute or lawsuit;

- Take no legal responsibility for the accuracy of information, documents and evidence provided by the parties;

- Refuse to provide information, documents and evidence related to the civil case or administrative lawsuit, unless the parties so agree in writing or as prescribed by law;

- Refuse to make a record on the outcome of mediation or dialogue if there are sufficient grounds to determine that such agreement or agreement violates the prohibition of the law, is contrary to social ethics or is intended to evade obligations to the State or other entities;

- Be provided with training in professional practices, mediation or dialogue skills;

- Be granted a mediator card;

- Receive remuneration as prescribed by the Government;

- Be given commendation as per the law.

4.2. Obligations of the mediator

Mediators have the following obligations:

- Conduct mediation or dialogue according to the procedures specified in this Law;

- Comply with laws, keep independent, impartial and objective;

- Ensure confidentiality of information as prescribed by Law on mediation or dialogue at the Court 2020;

- Refrain from forcing the parties to mediate or engage in dialogue against their will;

- Refrain from receiving money, benefits from the parties;

- Refuse to conduct mediation or dialogue if falling into one of the cases prescribed at Points a, b and d, Clause 1, Article 18 of Law on mediation or dialogue at the Court 2020;

- Respect the agreement of the parties, if the content of such agreement does not violate the prohibition of the law, is not contrary to social ethics, is not intended to evade obligations to the State or other entities;

- Refuse to participate in proceedings as a presiding authority or officer in a case that he/she has conducted an unsuccessful mediation or dialogue and the case has been referred to the court for litigation settlement, unless otherwise provided for by law.

Ngoc Nhi

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