Vietnam: Answering 10 stucks in mediation and dialogue at the Court

1. Expert, person who has prestige in the community

- Expert is a person who is intensively trained, has practical skills, practical experience, intensive theory in a particular field or has superior knowledge compared to the common, achive university level or above. Expert by field such as: psychology, commerce, finance, intellectual property, etc.

- A prestiged person is a person who is knowledgeable about customs; has a close connection and influence in the family lineage, ethnic group and community; people in the community respect, trust, believe, listen and follow. Village elders, heads of villages, heads of clans or people who are often invited by ethnic minorities to perform rituals to pray for their families, clans and villages; dignitaries and positions in religions in ethnic minority areas (Buddhist, Muslim, Protestant, Catholic,...); professionals, intellectuals, businessmen, teachers, good medical practitioners or people with good economic conditions who often help and are trusted by the people as a reputable person.

Depending on the local practical situation, the Court has the competency to select experts, other professionals, and prestiged people in the residential community who meet the criteria specified in Clause 1, Article 10 of the Law on Mediation or Dialogue at Court of Vietnam to appoint a Mediator.

2. Can Mediator concurrently do other job?

Currently, the Law on Mediation or Dialogue at Court of Vietnam does not prohibit a Mediator to do other job besides mediation and dialogue at the Court. A Judge, Court Examiner, Court Clerk, Procurator, Procurator Inspector, Civil Judgment Executor, etc. who meets all requirements prescribed in Article 10 of the Law on Mediation or Dialogue at Court of Vietnam may be appointed as a Mediator.

Mediators can both participate in mediation and dialogue at the Court while concurrently performing other tasks. However, the mediator must arrange a reasonable time to ensure the completion of the assigned tasks on time.

Note: Mediator must 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.

3. What is the minimum number of Mediators per Court?

The maximum number of mediators at each Court is determined on the basis of the number of civil and administrative cases accepted by each Court in accordance with Clause 1 Article 3 of the Circular No. 04/2020/TT-TANDTC without minimum quantity limit.

4. Shall land disputes which have not been mediated at the commune-level be considered to get mediated in accordance with the Law on Mediation or Dialogue at Court of Vietnam?

Pursuant to Clause 2 Article 1 of the Law on Mediation or Dialogue at Court of Vietnam, mediation or dialogue under this Law shall be carried out for civil disputes under the jurisdiction of the Court according to the provisions of the Code of Civil Procedure of Vietnam. The Court has authority to settle land disputes which mediation at a commune-level People’s Committee fails in accordance with provisions in Article 203 of the Land Law of Vietnam.

Thus, for disputes over land use rights and land parcel boundary that have not gone through mediation procedures in communes and wards, they cannot be reconciled according to the Law on Mediation or Dialogue at Court of Vietnam because they are not within the jurisdiction of the Court.

5. Shall petitioner have rights to choose mediator the People's Court of province for mediation of dispute settled by the People's Court of commune?

In case that a dispute or request is settled by the commune-level Court, petitioners have right to choose a mediator from the list of mediators of another People's Court of district, but do not have rights to choose mediator the People's Court of province (Point c Clause 1 Article 8 of the Law on Mediation or Dialogue at Court of Vietnam).

6. When settling disputes in raising children after divorce or change of the person who directly raises children after divorce, shall the mediator have to consult with minor children from 7 years of age?

Currently, there is no requirement to consult minor children during the mediator's conduct of conciliation (according to Clause 9 Article 3 and Clause 4 Article 33 of the Law on Mediation or Dialogue at Court of Vietnam). However, mediator may consult the minor children to understand the child's wishes, thereby having a conciliation plan to protect the children's legitimate rights and interests in accordance with the Law on Mediation or Dialogue at Court of Vietnam.

7. Is mediation of divorce dispute mandatory? 

Pursuant to Clause 1 Article 3 of the Law on Mediation or Dialogue at Court of Vietnam: “Parties in mediation or dialogue must voluntarily participate in mediation or dialogue”.

Pursuant to Point a Clause 1 Article 8 of the Law on Mediation or Dialogue at Court of Vietnam, the parties have rights to agree or refuse to participate in mediation, dialogue or terminate mediation or dialogue.

Thus, voluntary is the principle of mediation of divorce dispute in accordance with the Law on Mediation or Dialogue at Court of Vietnam, which is based on the voluntary participate of the party, and is not a mandatory procedure.

8. Handling of cases the petitioner withdraws the petition when the mediator invites to mediation.

In cases where the petitioner withdraws the petition, the mediator shall forward the petition and accompanying documents to the court that has received the petition for resolution according to general regulations and notify the parties in accordance with provision in Clause 2 Article 41 of the Law on Mediation or Dialogue at Court of Vietnam.

After receiving the documents, the court considers returning the petition in accordance with the provisions of the Code of Civil Procedure of Vietnam and the Law on Administrative Procedures of Vietnam.

9. Do the parties have to request the court to issue a decision on recognition of the successful mediation or successful dialogue?

Pursuant to Point e Clause 1 Article 31 of the Law on Mediation or Dialogue at Court of Vietnam, opinions of the parties on whether or not to request the court to issue a decision on recognition of the successful mediation or successful dialogue are contained in the record of outcome of mediation or dialogue at court. Thus, the parties do not need to request the court to issue a decision on recognition of the successful mediation or successful dialogue, the mediator will mention opinions of the parties in the record of outcome of mediation or dialogue at court as a basis for consideration and decision on recognition of the successful mediation or successful dialogue.

10. After a mediator has been appointed, if the petitioner withdraws the petition, is it considered as successful mediation or successful dialogue?

When a mediator carries out a mediation, through mediation or dialogue, if the petitioner withdraws the petition, it is considered as successful mediation or successful dialogue. In case that a mediator has been appointed but has not carried out the mediation or dialogue, if the petitioner withdraws the petition, it is not considered as successful mediation or successful dialogue (Clause 4 and 5 Article 2 of the Law on Mediation or Dialogue at Court of Vietnam).

Bao Ngoc

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