Experiencing first-hand the linking of litigation and mediation

In July 2009, the Supreme People’s Court issued document Fa Fa [2009] No. 45 officially establishing a controversy and dispute resolution mechanism that marries litigation with mediation, otherwise known as the litigation and mediation linking mechanism. Since that time, the debates in various circles on the pros and cons of such a mechanism have not ceased. And the anxieties, frustrations and perplexity that this unfamiliar mechanism has elicited among foreign parties have far exceeded the praise.

At the beginning of 2013, a basic-level people’s court in Shanghai selected a number of individuals from among practising lawyers to assist and participate in litigation and mediation linking work, with one of the lawyers from this firm being among those selected. First-hand participation for close to half a year has revised our original opinion on the litigation-mediation mechanism.

Scope of application

Looking at the current situation of the above-mentioned basic level people’s court in Shanghai, the litigation-mediation mechanism has almost become a set preliminary procedure in all civil procedure cases. Once the court’s case filing chamber receives a case, it assigns it a litigation-mediation case number, which it then sends to the trial courts. This also marks the formal start of the litigation and mediation linking procedure. Subsequently, the judges of the trial courts who are assigned full-time to litigation-mediation work, or the organisation or individual assigned by the court, will be specifically responsible for advancing the case’s litigation-mediation procedure, for example, litigation-mediation scheduling, face-to-face mediation, collection of procedural materials, and follow-up mediation tracking.

Vincent Mu is a senior associate and Daniel Qian is a trainee at Martin Hu & Partners