Vietnam: 07 notable regulations specified in the Law on Mediation and Dialogue at Court 2020

Vietnam: 07 notable regulations specified in the Law on Mediation and Dialogue at Court 2020 (Internet image) 

1. During the mediation or dialogue process in Vietnam, no audio-recording or video-recording is allowed

Among the principles of mediation or dialogue at court prescribed in Article 3 of the Law on Conciliation and Dialogue at Court 2020, ht priciples where information relating to mediation or dialogue must be kept confidential is very important for the participating parties, mediators, organizing agencies, and individuals invited to participate in mediation and dialogue. This principle is clearly stated in Article 4 of this Law as follows:

- Mediators, parties, and other entities who are invited to participate in mediation or dialogue must not disclose information they know in the process of mediation or dialogue.

- During the mediation or dialogue process, no audio-recording or video-recording is allowed and no minutes of mediation or dialogue is taken. Mediators and the parties may only take notes for the purpose of mediation or dialogue and must keep the notes confidential.

- Documents and presentations of the parties in the process of mediation or dialogue must not be used as evidence in the course of case settlement as per the law (except for the cases where: the party that has presented documents and presented opinions during the mediation or dialogue process has agreed to use the documents and presentations during the mediation or dialogue process as evidence; the documents and presentations must be used as evidence in accordance with the law)

2. 4 Costs incurred in mediation or dialogue at court in Vietnam

According to the provisions of Article 9 of the Law on Mediation and Dialogue at Court 2020, the costs incurred in mediation or dialogue at court shall be covered by the state budget, except for the cases where the parties in mediation or dialogue at court must bear the following costs:

- Mediation costs for disputes on business and trade related to monetary claim;

- Costs incurred when the parties agree to select a place for mediation or dialogue outside the court's headquarters;

- Costs incurred when the mediator examines the current state of assets related to the civil case or administrative lawsuit which are outside the administrative boundaries of the province where the competent court is located;

- Costs incurred in foreign language interpretation.

3. Officials and public employees are not eligible to be appointed as mediators in Vietnam

According to Article 10 of the Law on Mediation and Dialogue in Court 2020, the requirements for appointment of mediators are as follows:

- Being a Vietnamese citizen who is permanently residing in Vietnam, loyal to the Fatherland and the Constitution of the Socialist Republic of Vietnam;

- Having full legal capacity, good moral qualities, being exemplary in the observance of the law;

- 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;

- 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;

This law clearly stipulates that people who do not meet the above conditions cannot be appointed as mediators, and at the same time affirms that people who are official or public employees, commissioned officers or non-commissioned officers of the People's Army, professional soldiers, workers, defense officers, People's Public Security commissioned officers or non-commissioned officers, or police workers cannot be appointed as mediators.

4. 05 cases where the mediator must refuse to mediate at Court in Vietnam

It is not always the case that the selected or appointed mediators are allowed to participate in mediation or dialogue. According to Article 18 of the Law on Mediation and Dialogue at Court 2020, a mediator must give a refusal when selected, appointed or changed in one of the following cases:

- He/she has rights and obligations related to the case undergoing the mediation or dialogue;

- It is well founded that he/she may not be impartial and objective while performing his/her duties;

- The parties change the assigned mediator and agree to select another mediator;

- The mediation, dialogue cannot be conducted due to force majeure events or objective hindrance;

- He/she is dismissed or discharged in accordance with this Law.

For cases 1, 2 and 4, mediators who refuse to conduct mediation or dialogue must notify the reasons to the parties, the court competent to settle the case and the court where the mediator has worked.

5. 07 cases of non-conduction of mediation or dialogue at court in Vietnam

According to Article 19 of the Law on Mediation and Dialogue at Court 2020, 07 cases of non-conduction of mediation or dialogue at court include:

- Claim compensation for damage to the State's properties.

- Cases arising from civil transactions that violate the prohibition of law or social ethics.

- The petitioner, the respondent, persons with related interests and obligations have been duly invited to participate in mediation or dialogue for the second time but still absent due to force majeure events or objective obstacles or unable to participate in mediation or dialogue for valid reasons.

- A spouse in a divorce dispute is legally incapacitated.

- One of the parties proposes not to conduct mediation or dialogue.

- One of the parties requests the application of a provisional emergency measure as per the Civil Procedure Code and the Administrative Procedure Law.

- Other cases as prescribed by law.

6. Requirements for recognition of successful mediation or successful dialogue at court in Vietnam

According to Article 33 of the Law on Mediation and Dialogue in Court 2020, the successful mediation or successful dialogue are recognized when the following requirements are fully met:

- The parties have full legal capacity;

- The parties have rights and obligations with respect to the content of agreement;

- The agreement of the parties is completely voluntary, 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;

- In case the parties agree an amicable divorce, the agreement of the parties must contain all matters related to on divorce, property division, care for and education of minor children and/or adult children who are legally incapacitated, are incapable of work and have no property to support themselves on the basis of ensuring the legitimate interests of their spouses and children in accordance with the Law on Marriage and Family;

- If the content of the agreement on mediation or dialogue of the parties is related to the rights and obligations of another person but such person is not present at the mediation or dialogue session, such agreement shall be recognized only if such person gives consent in writing;

- Where the parties reach an agreement on a part of the civil dispute or administrative lawsuit, that part shall be recognized only if it does not relate to other parts of the dispute or lawsuit..

Thus, if the above conditions are met, the Judges must make a decision to recognize the results of successful mediation or successful dialogue.

7. Procedures for mediation and dialogue at Court in Vietnam

The procedures for mediation and dialogue at Court in Vietnam according to the Law on Mediation and Dialogue at Court 2020 includes the following steps:

Step 1: Receiving and handling lawsuit petitions and petitions at courts and appointing mediators

he lawsuit petitioner or petitioner (hereinafter referred to as petitioner) shall send a petition to resolve civil case or administrative lawsuit enclosed with documents and evidences to the competent

Within 2 working days after receiving such a petition, if it does not fall into one of the cases prescribed in Clauses 1, 2, 4, 6 and 7, Article 19 of this Law, the Court shall notify in writing the petitioner of the right to choose mediation or dialogue and to select mediator in accordance with this Law.

Step 2: Preparing mediation or dialogue at court

The work of preparing mediation or dialogue of mediators includes: Receiving the application and attached documents transferred by the court; Record the case in the logbook; Examining the application and attached documents transferred by the court; Determining litigation positions of the parties, their representatives and interpreters in the civil case or administrative lawsuit; notify them of mediation or dialogue; Requesting the parties to supplement information, documents and evidence; proposing plans and solutions to resolve the civil case or administrative lawsuit; Formulating plans and solutions for mediation or dialogue; Invite reputable people capable of influencing each party to the mediation or dialogues for further support when necessary; Studying relevant laws and regulations, understanding customs, practices and circumstances of the parties intended for mediation or dialogue when necessary; Consulting with entities with expertise in fields related to the civil case or administrative lawsuit intended for mediation or dialogue when necessary; Other contents necessary for mediation or dialogue.

Step 3: Conducting mediation or dialogue sessions at court

When the parties agree to meet to agree on a plan to resolve a civil case or an administrative lawsuit, the mediator shall determine the time and place for the mediation or dialogue session and give notice to the parties, representatives and interpreters at least 05 days before the opening of the mediation or dialogue session.

Step 4: Holding a session to record the outcome of mediation or dialogue at court

When the parties reach an agreement on the settlement of all or part of the civil case or administrative lawsuit, the mediator shall set a time and place for the meeting to record the outcome of mediation or dialogue.

A meeting to record the outcome of the mediation or dialogue may be held immediately after the mediation or dialogue session or at another appropriate time. The mediator shall hold a session to record the outcome of the mediation or dialogue at the head office of the court which is competent to resolve the case.

The judge attending the session signs the record of mediation outcome, the record of dialogue outcome and must keep the contents of mediation or dialogue provided by the parties at the session confidential at their requests.

Step 5: Issuing a decision to recognize the successful mediation or successful dialogue at court

After making a record of mediation outcome or a record of dialogue outcome, the mediator shall transfer the record and accompanying documents to the court competent to settle the civil case or administrative lawsuit in order to issue a decision on recognition of successful mediation or successful dialogue in cases where the parties so request:

- In case meeting conditions to recognize successful mediation or dialogue results, the judge shall issue a decision on recognition of successful mediation or successful dialogue;

- In case not meeting conditions to recognize successful mediation or dialogue results, the judge shall issue a decision on non-recognition of successful mediation or successful dialogue and provide explanation. The judge shall transfer the decision, the record and the attached documents to the court that is competent to resolve the case in accordance with the procedural law.

A decision on recognition or non-recognition of successful mediation or successful dialogue shall be sent to the parties and the Procuracy of the same level within 3 working days after the court issues the decision.

More details can be found in the Law on Mediation and Dialogue at Court 2020, which comes into force from January 1, 2021.

Ty Na

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