SUPREME PEOPLES COURT OF VIET NAM EUROPEAN UNION UNITED NATIONS DEVELOPMENT PROGRAMME REPORT ON ASESSMENT OF THE PILOT MODEL ON COURT ANNEXED MEDIATION AND DIALOGUE IN VIETNAM (bao cao danh gia thi diem hoa giai tai

SUPREME PEOPLE’S COURT OF VIET NAM EUROPEAN UNION UNITED NATIONS DEVELOPMENT PROGRAMME REPORT ON ASESSMENT OF THE PILOT MODEL ON COURT ANNEXED MEDIATION AND DIALOGUE IN VIETNAM May 2020 THE RESEARCH GROUP Assoc.Prof.Dr Nguyen Ba Binh – Team leader – UNDP’s consultant Dean of Faculty of International Trade and Business Law, Hanoi Law University (Vietnam) Arbitrator at Vietnam International Arbitration Centre (VIAC) Assoc.Prof.Dr Tran Anh Tuan – Team member – UNDP’s consultant Vice Dean in Charge of Faculty of Civil Law Hanoi Law University (Vietnam) Prof Michael R Schuetz – Team member – UNDP’s consultant Head of Rule of Law Organization for Security and Cooperation in Europe Mission to Bosnia and Herzegovina LL.M Hoang Thi Thuy Vinh – Supporter Deputy Director General Department of Legal Affairs and Research Administration The Supreme People's Court (Vietnam) PhD Candidate Phan Thi Thu Ha – Supporter Deputy Head Department of Legal Affairs and Research Administration The Supreme People's Court (Vietnam) LL.M Ha Le Thuy – Supporter Department of Legal Affairs and Research Administration The Supreme People's Court (Vietnam) PhD Candidate Pham Thi Hang – Supporter Department of Legal Affairs and Research Administration The Supreme People's Court (Vietnam) LIST OF CHARTS Chart 1: The percentage of successful mediation and dialogue based on case types by localities; Chart 2: Numbers of each type of successful mediation and dialogue cases by localities; Chart 3: The percentage of mediation and dialogue cases involving women; Chart 4: Data on successful mediation of marriage cases; Chart 5: Ages of divorce in 2019; Chart 6: Marriage case with children under 18 years old; Chart 7: Source of Mediators and dialoguers; Chart 8: Enforcement percentage of successful mediation and dialogue; Chart 9: Time to carry out a case of mediation or dialogue; Chart 10: Benefits received by the parties after successful mediation and dialogue; Chart 11: Contact method between the mediator/dialoguer and the parties; Chart 12: Location for conducting mediation and dialogue; Chart 13: Reasons for choosing to be mediators and dialoguers; Chart 14: Desires of mediators and dialoguers; Chart 15: Case of mediation, dialogue with the assistance of prestigious people; Chart 16: Mediators and dialoguers’ choice of remuneration methods; Chart 17: Mediators and dialoguers’ need of training and retraining TABLE OF CONTENTS Page I THE PILOT MODEL ON COURT ANNEXED MEDIATION AND DIALOGUE IN RELATION TO EXISTING COURT PRACTICES…… 1.1 Background……………………………………………… ………… … 1.1.1 Situation of resolving civil and administrative cases in Court…… … 1.1.2 The operation of current mediation and dialogue mechanisms in Vietnam………………… … 1.2 Basic contents of the pilot model………………… ………… …………9 1.2.1 Scope and object ……………………… ………… ……….……… 10 1.2.2 The subjects which carry out mediation and dialogue ……… …….…10 1.2.3 Role of Court ………………………………………….……….…… …10 1.2.4 Time limitation for mediation and dialogue……………………… ….11 1.2.5 Information confidentiality in mediation and dialogue ………….… 11 1.2.6 Procedure for mediation and dialogue …………………………… ….11 1.2.7 Recognition of successful mediation and dialogue ………….… … 12 1.2.8 Handling unsuccessful mediation and dialogue ……………… ….…14 II INTERNATIONAL BEST PRACTICES IN COURT ANNEXED MEDIATION …………………………………………………………… … 14 2.1 Court Annexed Mediation in Context………… ………………………14 2.2 Case Studies……………………………………………… ……….……16 2.3 A Review of Court Annexed Mediation Characteristics……… … …25 2.3.1 The Role of the Court and the Judge in CAM……….…………………25 2.3.2 Judicial Conciliation and Settlement in Relation to CAM ……… 27 2.3.3 Competencies and Accreditation of Mediators ……………… …… 28 2.3.4 Procedural and Administrative Issues …………………………………29 III FINDINGS BASED ON AN ASSESSMENT OF IMPLEMENTION OF THE PILOT MODEL ON COURT ANNEXED MEDIATION AND DIALOGUE……….…………………………………………… ……………34 3.1 Summary of survey program …………34 3.2 Achievements of the pilot………………… …………………… … …35 3.2.1 Regarding the mediation and dialogue results according to case types… 35 3.2.2 Mediation and dialogue results for disadvantaged groups ……… … 36 3.2.3 Capacity of mediators and dialoguers ………………………………….40 3.2.4 Illustrations of successful mediation and dialogue…………… … …41 3.2.5 Enforcement of successful mediation and dialogue ……………… …46 3.2.6 Saving of time and costs for parties in mediation and dialogue and the proceeding agencies……………………………………………………………46 3.3 Basic factors for success …………………………………………………48 3.3.1 Flexibility in mediation and dialogue procedures … …………………48 3.3.2 The capable and dedicated mediators and dialoguers ………….… …49 3.3.3 Support of the Court and other authorities and institutions …… ……50 3.4 Some difficulties and challenges …………………………………… …52 3.4.1 On selection, appointment and management of mediators and dialoguers……………………………………………… ……………… ……52 3.4.2 On procedures for mediation and dialogue…………….……… ……52 3.4.3 On trust and support of the people …….……………….………………53 3.4.4 On funding and infrastructure………………………………………….53 IV RECOMMENDATIONS…………………………………………………54 4.1 On some contents of a draft Law on court annexed mediation and dialogue in Vietnam …………………………… ……………………………54 4.1.1 Scope and subjects ………………………………………………… …54 4.1.2 The subjects which carry out mediation and dialogue…………………54 4.1.3 Role of Court ……………………………………………………………56 4.1.4 Procedures for mediation and dialogue………………………… …….57 4.1.5 Recognition of successful mediation and dialogue ………………… 58 4.1.6 Handling of unsuccessful mediation and dialogue ……………………59 4.2 On implementation of the Law ……… ……………….……………… 59 4.2.1 Dissemination of the Law and public awareness ………………… ….59 4.2.2 Selecting, fostering and managing mediators and dialoguers…….… 59 4.2.3 Getting assistance from relevant agencies and organizations …… …60 4.2.4 On the development of mediation and dialogue centers in the future 61 4.2.5 Other issues……………………………………………………… ……61 I THE PILOT MODEL ON COURT ANNEXED MEDIATION AND DIALOGUE IN RELATION TO EXISTING COURT PRACTICES 1.1 Background 1.1.1 Situation of resolving civil and administrative cases in Court In 2013, Vietnam promulgated a new Constitution1, which stated that: People’s courts are the agencies that adjudicate and exercise judicial power People’s courts have the duty to safeguard justice, human rights, citizens’ rights, the socialist regime, the interests of the State, and the lawful rights and interests of organizations and individuals2 According to the above functions and duties the People's Court, together with the amendments and supplements of the new laws, the 2015 Civil Procedure Code and the Administrative Procedure Code were born with more extended authorities for the Courts3, for example, adding the recognition authority to successful mediation outside the Court - Article 27, the resolution authority to land without use right certificate - Article 26, surrogacy related requirements in accordance with the law on marriage and family - Article 29, Article 43…; along with the economic and social development, the Courts have to accept and handle increasing disputes and lawsuits both in quantity and complexity In 03 years of 2016, 2017 and 2018, the district and provincial People's Courts solved 1,035,478 civil, marriage and family, business, commerce and labor cases out of a total of 1,196,487 accepted cases; in which, in 2017: 394,970 cases were accepted (increased by 41,521 cases, up 11.8%, compared to 2016), in 2018, 448,068 cases were accepted (increased by 53,098 cases, up 13.4%, compared to 2017))4 Meanwhile, the current number of staffs on the payroll does not meet the requirements compared to the organizational structure, apparatus, duties and competence of the Courts Besides, from the end of 2017, all levels of the People's Court had to reduce the number of staffs on the payroll according to the Party's general policy5 In this context, to keep up with the workload while reducing staff improving the resolution effectiveness of mediation in civil cases, dialogue in administrative complaints is one of the central solutions to enhance court work quality, create a fundamental change in the performance of work tasks in general and the settlement and adjudication of civil and administrative cases in particular The 2013 Constitution was passed by the XIII National Assembly, 6th session, on November 28, 2013, and took effect from January 1, 2014, replacing the 1992 Constitution Article 102 of the 2013 Constitution The 2015 Civil Procedure Code and the 2015 Administrative Procedure Code took effect from July 1, 2016 Report No 56/BC-TANDTC dated September 26, 1919 of the Supreme People's Court, summarizing the implementation of laws, assessing the status of social relations related to the project of the Law on Mediation and dialogue at Court (hereinafter referred to as Report No 56/BC-TANDTC) - p.2 Resolution No 18-NQ/TW dated October 25, 2017 of the 6th plenum of the 12th Party Central Committee on a number of issues on continuing to renovate and organize the apparatus towards the streamlined, effective and efficient political system 1.1.2 The operation of current mediation and dialogue mechanisms in Vietnam According to Vietnamese current laws, there are two classified groups: mediation and dialogue outside of civil procedure and mediation, and dialogue within civil procedure (1) Mediation and dialogue out of civil and administrative procedure Vietnamese current laws stipulate a number of non-procedural mediation mechanisms such as: (i) Grassroots mediation in accordance with the Law on Grassroots mediation; (ii) Mediation of labor disputes in accordance with the Labor Code6; (iii) Commercial mediation in accordance with the Commercial Law7; (iv) Mediation of land disputes by commune-level People's Committees in accordance with the Land Law8 and some other types The common feature of these mediation mechanisms is that they are conducted by individuals and organizations outside the court, for disputes that have not been accepted and settled by the court in accordance with the proceedings, therefore such mediation mechanisms are also known as out-of-court mediation The results of successful mediation outside the Court by the above-mentioned agencies, organizations, individuals and competent persons shall be considered and recognized by the Court upon issuance of the decision as requested Regarding to dialogues, the laws also provide out – of – court dialogue mechanisms such as: Dialogue between the complainants, respondents and relevant agencies, organizations and individuals in accordance with the Law on Complaints10 If the above process of mediation and dialogue ends unsuccessfully, people have the right to sue and request the Court to resolve The average successful rate of grassroots mediation mechanism is 82.06% (323,046/ 393,649 cases)11 However, the number of cases conducted by grassroots mediators only accounts for 32.9% of those handled by the courts (393,649/1,196,487 cases), mostly for small conflicts and disputes At the same time, the number of successful mediation cases at grassroots level tends to decrease over the years (there were 115,651 cases in 2016, 108,757 cases in 2017 and 98,638 cases in 2018, respectively)12 The labor mediators conduct a small number of labor disputes and have just begun to participate in resolving several individual labor disputes in some big cities and provinces such as Ho Chi Minh City, Dong Nai and Binh Duong (on average, each mediator deals Labor mediators conduct mediation for individual labor disputes - Article 201 of the 2012 Labor Code On 24 February 2017, the Government issued Decree No 22/2017/ND-CP on commercial mediation Mediation at the People's Committee of the commune where the land related to land disputes is located - Article 202 of the 2013 Land Law; Labor mediators conduct mediation for individual labor disputes - Article 201 of the 2012 Labor Code Article 416 of the 2015 Civil Procedure Code 10 Article 30 Law on Complaints 11 Report No 56/BC-TANDTC - p.8 12 Report No 56/BC-TANDTC - p.8 7 with about 10 cases/year)13 In addition, there are 08 commercial arbitration centers that have trade mediation function since April 2017 14 Up to now, there has been no official report on trade disputes resolved by trade mediation.15 However, due to being in operation for a short time16, these centers have very few cases of mediation, even typically Vietnam Mediation Center (VMC) of Vietnam International Arbitration Center (VIAC - a major and prestigious arbitration center in Vietnam), successfully managed to settle only 05 commercial disputes after one year of operation (from April 27, 2018).17 But it should be noted that the value in controversy in those cases is very large18 Thus, the out-of-court mediation mechanism has achieved certain results, contributed to the reduction of cases brought to the Court However, the number of out-of-court mediated disputes accounts for only a small portion compared to the number of disputes accepted and resolved by the Court every year (2) Mediation and dialogue in civil and administrative procedure Vietnam's Civil Procedure Code stipulates that mediation is a basic principle of civil proceedings, conducted to resolve cases of civil disputes, marriage and family, business, commerce, labor and request on recognition of divorce, agreement on child custody, asset division upon divorce (hereinafter referred as civil cases) Accordingly, the judge assigned by the Chief Judge to resolve civil cases is responsible for conducting mediation in the stage of preparation for firstinstance trial19 The judge performs two main tasks when conducting mediation, which is (1) to inform involved parties about the legal provisions related to the case resolution and (2) to analyze legal consequences of successful mediation for the parties20 The mediation/dialogue plan is on the parties’ initiative The Administrative Procedure Law stipulates that the Court is responsible for conducting dialogues and creating favorable conditions for involved parties to talk to each other about the administrative case resolution in accordance with this Law21 The role of judges in administrative complaint dialogue is similar to that in civil dispute mediation The difference between "mediation" and "dialogue" originates from the nature of "agreement" in resolving civil disputes 13 Report No 56/BC-TANDTC - p.5 The trade mediation centers operate under Decree No 22/2017/ ND-CP on commercial mediation (took effect from April 15, 2017) 15 Report No 56/BC-TANDTC - p.12 16 Decree No 22/2017/ND‐ CP on commercial mediation promulgated in mid-2017, it was not before the end of December 2018 that commercial licenses were awarded to qualified commercial mediation centers, and May 2019 that the Ministry of Public Security provided seal samples for the centers to officially come into operation 17 Nguyen Trung Nam, Commercial mediation in Vietnam, section 3, at http://www.viac.vn/tin-tuc-su-kien/hoagiai-thuong-mai-tai-viet-nam-n694 html, accessed on 20-02-2020 18The value in controversy in those cases is of 934, billion dongs, see https://www.thesaigontimes.vn/289391/vmc-mot-nam-hoa-giai-5-vu-tri-gia-tranh-chap-gan-1000-tidong.html, last visit on 13 May 2020 19 Article 10, from Article 205 to Article 213 of the 2015 Civil Procedure Code 20 Clause 4, Article 210 of the 2015 Civil Procedure Code 21 Provisions on dialogue in administrative proceedings prescribed in Article 20, from Article 134 to Article 139 of the 2015 Law on Administrative Procedure 14 and the nature of "non-negotiability" in resolving administrative lawsuits as the defendant is governmental administrative management agency Therefore, the result of successful dialogue is limited to the parties' agreement on the legality of administrative decisions and administrative acts Up to now, the average rate of successful mediation in resolving civil cases of the Court has reached 50% of cases which referred to mediation annually22 Meanwhile, the average successful dialogue rate is 10% (13.63% at district level, 6.21% at provincial level)23 These figures show a certain success of mediation and dialogue in proceedings However, practices of civil disputes and administrative lawsuits resolution at the Court also reveal several limitations, shortcomings in the current mediation and dialogue mechanism in proceedings, typically two following issues: Firstly, regarding subject who conducts mediation, dialogue: A judge who conducts the mediation or dialogue is also the person who adjudicates the case if the mediation or dialogue fails, therefore he is bound by the procedural regulations, such as verification and collection of evidence as required24, mediation is only limited to informing the involved parties about legal provisions related to case resolution for a reference to their own rights and obligations, analyzing legal consequences of successful mediation for voluntary agreement with each other on case resolution25, hard to play an active role in propose mediation and dialogue plan for the parties On the other hand, the involved parties often have a cautious mentality when presenting to the Judge because their presentation may become detrimental evidence for them Therefore, the causes of contradictions and disputes are difficult to be solved thoroughly, thereby the effectiveness of mediation and dialogue is limited Secondly, regarding the mediation order and procedures: mediation and dialogue are conducted by strict and public order and procedures at the court headquarters and during office hours, therefore the flexibility in procedures, time, location and information security in mediation and dialogue are not provided Given the increasing number of cases in both quantity and complexity, and in the context of downsizing, as described in the above subsection 1.1.1, the renovation of mediation and dialogue mechanisms is an appropriate solution proposed by the Supreme People's Court 1.2 Basic contents of the pilot model The pilot model on court annexed mediation and dialogue is based on the renovation of two important factors, namely, the subject who conducts mediation, dialogue and the order, procedures for mediation and dialogue, as follows: 22 Report No 56/BC-TANDTC - p.7 Statistics from October 1, 2017 to March 31, 2018 - Report No 56/BC-TANDTC 24 Clause 2, Article 203 of the 2015 Vietnam Civil Procedure Code 25 Clause 4, Article 210 of the 2015 Vietnam Civil Procedure Code 23 1.2.1 Scope and object Under the pilot model, the mediation of civil, business, commercial, marriage and family, labor disputes (hereinafter referred to as civil disputes), dialogue of administrative complaints in People's courts are conducted before the courts accept and settle them except for disputes and lawsuits which are not subjects for mediation, dialogue or unable to conduct mediation, dialogue in accordance with the provisions of the Civil Procedure Code, the Law on Administrative Procedures.26 1.2.2 The subjects carrying out mediation and dialogue27 Mediators and Dialoguers are selected from retired judges; those who used to be Procurators, Investigators, legal experts in Courts, procuracies, Police offices, Judicial Execution agencies, other Party and State agencies of the internal affairs division; lawyers, jurists, people's jurors or other people with legal knowledge, good health, good moral qualities, competence, experience in mediation, dialogue and prestige in the community Mediation and dialogue centers have been established in a number of district and provincial People's Courts of 16 pilot-selected localities28 The Chief Judge or Deputy Chief Judge of the pilot-applied Court is the Director of the Mediation and dialogue Center at the Court 1.2.3 Role of Court The court performs the following main role:29 - Select, appoint and train skills and knowledge for mediators and dialoguers; provide guidance on mediation and dialogue activities; assign the mediators and dialoguers to specific cases - Assign people to perform administrative and judicial tasks, record mediation, dialogue minutes (when required); - Recognize the successful mediation results according to the civil procedure, recognize the divorce agreement, agreement on children custody, assets division upon divorce if requested; return the petition when the petitioner withdraws the application; receive and consider case acceptance when mediation or dialogue fails; - Arrange working rooms, necessary equipment and working facilities, 26 Official Dispatch No 48/TANDTC-PC of March 9, 2018 of the Supreme People's Court guiding the pilot implementation of innovating, strengthening mediation and dialogue in resolving civil disputes and administrative complaints in Hai Phong City, amended and supplemented by Official Dispatch No.72/TANDTCPC of April 16, 2018 (hereinafter referred to as Official Dispatch No 48/TANDTC-PC) - p.3 27 Official Dispatch No 308/TANDTC-PC of October 9, 2018 of the Supreme People's Court guiding a number of activities to prepare for pilot implementation of innovating, strengthening mediation and dialogue in 16 provinces and municipalities - p.3 28 Hà Nội, Hải Phòng, Bắc Ninh, Vĩnh phúc, Quảng Ninh, Thái Bình, Thanh Hóa, Quảng Nam, Nghệ An, Đà Nẵng, Khánh Hòa, Đồng Nai, Hồ Chí Minh, Bình Dương, Long An, Cần Thơ 29 Official Dispatch No 48/TANDTC-PC – p.3 10 Meanwhile, the average mediation and dialogue process in the procedure lasted from to months, the average adjudication time was from to months, not to mention cases that had to go through appellate trials and cassation review, which took many times over Thus, the pilot mediation and dialogue significantly saved time compared to trial Time savings also help the parties save effort; at the same time, the flexible procedures, and the ability to contact mediators, dialoguers via telephone, online means or meet outside the Court headquarters which allows the parties to arrange meetings in accordance with their working time also helps the parties save effort compared to the proceedings In case of failure, the Court can resolve the case faster because the mediation process helps the parties to better understand their rights and obligations, so the parties are also more cooperative with the Court and the lawsuit dossier is better prepared when transferring to proceedings Survey results for the parties participating in mediation and dialogue showed the benefits received by the parties after successful mediation and dialogue, based on their opition, as in Figure 10 below: Chart 10: Benefits received by the parties after successful mediation, dialogue Besides, during the pilot mediation process, the involved parties not have to pay the mediation fee as in the proceeding For the Court, the average cost for a successful mediation or dialogue in a pilot phase is VND 1.2 million, which is equal to 20% of the average cost for a case in the first instance trial (t55.5 million).106 In addition to cost savings, successful mediation, dialogue cases have reduced work pressure, saved time and manpower in preparing and organizing first106 Report No.55/BC-TANDTC dated September 26, 2019 of the Supreme People's Court evaluating the impact of the Law on court annexed mediation and dialogues project 47 instance, appellate trials and cassation review for procedure-conducting bodies at first instance level and appellate and cassation level, if there are appeals or protests 3.3 Basic factors for success 3.3.1 Flexibility in mediation and dialogue procedures As soon as an involved party submits an application to the Court, the lawsuit petition will be transferred to the mediation and dialogue center for resolution After receiving the petition, the Director of the Center assigns a Mediator/Dialoguer to implement mediation/dialogue The mediators and dialoguers actively research case dossier, schedule working sessions with the parties (they can contact the parties by direct phone call) during or outside the office hours depending to the appropriate time for all parties Mediators and dialoguers may meet the parties at or outside the court offices such as at the parties' private houses, at the neighborhood culture house, the village cultural house, at the office of the People's Committee (usually for land disputes) or some cases at the lawyer's office (if the mediator is a lawyer) The survey results indicated the selection of contact method and venue for mediation and dialogue as in Figures 11 and 12 below: Chart 11: Contact method between the mediator/dialoguer and the parties Chart 12: Location for conducting mediation and dialogue 48 In addition, evidence is not a compulsory and basic but a supporting factor in mediation and dialogue Therefore, the parties not spend much time and effort on gathering evidence Judges participating in the session shall record the mediation, dialogue results to grasp the contents of the case, sign the minutes of successful mediation, and quickly issue a decision recognizing the successful mediation and dialogue results The procedural softness and flexibility have contributed to promoting the advantages of mediation, dialogue and the success of the pilot 3.3.2 The capable and dedicated mediators and dialoguers The survey has indicated most of the mediators and dialoguers’ outstanding qualities and competencies as followed: Firstly, the ability to study the case dossiers, fully and quickly grasp the dispute contents, dispute related subjects, the dispute causes, the dispute key issues to be resolved to help parties reach agreements and mutual consent Secondly, the flexibility, initiative and creativity in mediation and dialogue process shown by the diverse use of mediation methods, such as meeting with each party, encouraging, persuading and asking logical questions to exploit the psychology and affection of the parties; proactively meeting the relevant agencies and organizations to understand more about the origin of the dispute, referring to the market price to develop a plan of mediation and dialogue for the parties Thirdly, the sensitivity in grasping the parties’ psychology to the dispute, especially in the divorce cases, the mediators analyze on the aspect of family emotion, spousal affection for the parties to recognize their faults for sympathy, sharing and family relation healing The successful reunification results of the marriage disputes are the clearest proofs Fourthly, the perseverance in the mediation, dialogue of cases where the involved parties not cooperate and participate in mediation or dialogue session; with the mediators’ persistence and enthusiasm, the cases are finally successful mediated/dialogued Fifthly, the kindness in the heart, the protection for the disadvantaged such as children encouragement in a divorce case to let them confide their feelings and aspirations to the mediators, thereby persuading the parties to develop the best mediation plan for children In addition, the profound humanity in the mediated cases is shown in the successful mediation civil case involving hundreds of wounded soldiers; the encouragement of lenders to reduce principal and interest for borrowers because of their serious difficulties The survey results also showed the reasons for choosing to be mediators, dialoguers and desires of mediators and dialoguers as in Figures 13 and 14 below: 49 Chart 13: Reasons for choosing to be mediators and dialoguers Chart 14: Desires of mediators and dialoguers As such, the group of mediators and dialoguers group converge the necessary elements to create success, including competence, enthusiasm, experience and prestige 3.3.3 Support of the Court and other authorities and institutions The active support of the Courts, related agencies and organizations also significantly contributed to the pilot success First of all, the Supreme People’s Court’s leaders had timely direction, supervision and profound attention to the pilot activities The Supreme People’s Court issued documents on the organization and operation of the mediation and dialogue centers at the Courts The issues of professional guidance in the mediation and dialogue process; the organization of 02 legal and professional training conferences in Hanoi and Ho Chi Minh City for mediators, dialoguers, court leaders and officials in charge of mediation and dialogue pilot107 Then, a number of local courts (Hanoi, Hai 107 The Supreme People's Court has issued documents on the pilot activities such as: Plan No 301/KH-TANDTC 50 Phong) continued to organize training courses, seminars to share experiences on mediations and dialogues for mediators, dialoguers, the Directors and Secretaries of Mediation and dialogue centers at the Court.108 The Supreme People's Court also sent delegations headed by the Justices of the Supreme People's Court Justices to each locality to provide direct professional guidance to the pilot localities The standing members of the City and Provincial Party Committees, the People's Councils, the People's Committees and local government agencies where the pilot was conducted took part in the Steering Committee for the pilot implementation, providing financial support for pilot activities The commune-level People's Committee assisted in sending invitations to the parties, providing mediation rooms and attending mediation sessions to motivate and persuade the parties The survey showed the rate of mediation and dialogues with the assistance of respected people as in Figure 15 below: Chart 15: Case of mediation, dialogue with the assistance of respected people Supports of respected people include: professional officials in land management of communes and wards in determining the origin of houses and land, measuring land; women union; youth union members; fathers, mothers and relatives of the disputing parties in encouraging and persuading the parties to have successfully mediation and dialogue sessions The pilot also received the dedicated and enthusiastic support from international experts, such as judges from the United States, Korea, India and Japan Especially, Judge Gordon J Low - US High Court directly trained mediation skills for mediators and dialoguers at the mediation and dialogue sessions dated October 01, 2018 on the pilot implementation; Plan No 322/KH-TANDTC dated October 10, 2018 on training mediation and dialogues skills; Official Dispatch No 308/TANDTC-PC dated 9-10-2018 guiding a number of activities to prepare for pilot implementation, Official Dispatch No 310/TANDTC-PC dated October 11, 2018 on guidelines for pilot implementation 108 Workshop on "Strengthening the mediation skills for mediators" on December 17-18, 2018, organized by the People's Court of Bac Ninh province in cooperation with JICA of Japan 51 The press and television agencies supported the information and communication of the pilot: Justice Newspaper, People's Court Journal, Vietnam Television Stations, Vietnam News Agency, and National Assembly television had many articles and sections on pilot on court annexed mediation and dialogue The Portal of the Supreme People's Court also launched a section on "Pilot project of innovating, strengthening mediation, dialogue of civil disputes, administrative lawsuits" to publish documents, articles and information on mediation and dialogue A number of courts in collaboration with the internal affairs department and the local radio and television station conducted reports on mediation, dialogue, such as the People’s court of Nghe An 3.4 Some difficulties and challenges 3.4.1 On selection, appointment and management of mediators and dialoguers Due to the pilot time, the policies and experience of pilot implementation in general, as well as the selection, appointment, and management of mediators and dialoguers have some limitations In particular, the number of allocated mediators and dialoguers is not appropriated with the number of cases requiring mediation, dialogue, which leads to an overload situation in some mediation and dialogue centers at the Court.109 There also have not been specific provisions on mediators and dialoguers’ rights and obligations as well as measures to handle their violations Therefore, in some cases the results are ineffective since the mediators and dialoguers have not taken appropriate time and effort to conduct mediation, dialogue sessions 3.4.2 On procedures for mediation and dialogue In general, the order and procedures for mediation and dialogue are very flexible and take the initiative for the mediators and dialoguers However, the pilot process still faces a number of difficulties and problems regarding the mediation order and procedure due to the lack of adjustment in the law and practical experience, as follows: Firstly, the month maximum time limit for mediation and 02 months maximum time limit for dialogue is not appropriate for complicated cases, such as cases needed consultations from state management and specialized agencies in some disputed areas; cases which take time to verify the parties' contacts and information; where the parties encounter force majeure events or objective obstacles leading to the extension of the time-limit for mediation or dialogue; in case the parties agree to extend the time for mediation and dialogue according to the schedule of commitments fulfilling of the obligated party For these cases, the mediators and the dialoguers must finish the mediation process on time lead 109 For example, on average, each mediator, dialogue conductor the Mediation and dialogue center at the People's Court of Dong Da District, Hanoi City has to settle 160 cases, in months (nearly 18 cases/ month), times higher than the average 52 to unsuccessful mediation/dialogue Secondly, due to the application of the procedure for recognition of successful out-of-court mediation results as prescribed in the Civil Procedure Code, the parties are afraid of using this procedure because it is complicated and time-consuming, especially in credit and trade disputes Through the survey, some involved parties said that, the procedure for mediation result recognition was too complicated and inappropriate, despite of successful mediation sessions, they made unsuccessful minutes to switch to the mediation mechanism in civil procedure for the successful mediation recognization This approach is both time and cost consuming for the parties and the Court, as well as invalidates the procedure for recognition of successful out-of-court mediation and dialogue results Thirdly, due to the lack of a specialized law, the application provisions on mediation and dialogue of procedural laws leads to difficulties and inconsistencies in implementation of some cases such as: the parties’ request for application of temporary emergency measures (the lawsuit petitioner files the request for the application of temporary emergency measures attached to the petition; or requests the application of temporary emergency measures during the process of mediation, dialogue); the verification in practice, such as on-site evaluation; invitation of agencies and organizations to participate in the mediation and dialogue process, especially the family and children management agencies in the marriage and family disputes 3.4.3 On trust and support of the people There are some limitations in the people’s awareness on mediation and dialogue In some cases the parties not fully understand the meaning of mediation, not really believe in the new mediation mechanism and are afraid of losing time, so when the Court transfers the lawsuit petition to the Mediation center to resolve, they assume that the Court is causing difficulties and have unpleasant and uncooperative attitude with the mediators and dialoguers such as not providing necessary documents and evidence at the request of mediators, dialoguers or requesting not to organize mediation, dialogue session In some cases, the party received the invitation of the mediation center did not cooperate, intentionally evaded, resulting in no mediation or dialogue In some other cases, the lawyers, the defenders of the parties’ legal rights and interests advised them not to agree to mediation and dialogue 3.4.4 On funding and infrastructure The infrastructure and material conditions of some centers still face many difficulties, due to the overloaded and degraded offices of district-level People's Courts, it is hard to arrange working offices, mediation and dialogue rooms (typically in Nghe An) The funding source for mediation and dialogue depends on the local funding, so it is untimely and insufficient to the actual needs; remuneration paid to mediators, dialoguers is not appropriate with their effort 53 and effective contribution; there is no funding for mediators, dialoguers to perform their tasks such as telephone charges, expenses on current status examination, on-site evaluation which affects their certainty to keep their mind on their work IV RECOMMENDATIONS 4.1 On some contents of a draft Law on court annexed mediation and dialogue in Vietnam 4.1.1 Scope and subjects Currently, in Vietnam, there are a number of mediation and dialogue mechanisms outside the Court and in the proceedings However, the Courts are still facing work overload due to the increasing number of disputes Moreover, it is a common sense to develop more opportunities for parties to participate in mediation and dialogue Therefore, it is appropriate for the applied scopes and subjects of the new Law to be limited to the types of disputes and lawsuits falling under the jurisdiction of the Court which were initiated at the Court and brought to mediation, dialogue before the Court accepted the case This mechanism is also independent and does not conflict, overlap, replace the current mediation and dialogue mechanism 4.1.2 The subjects carrying out mediation and dialogue Firstly, the sources of mediators and dialoguers The pilot results and experiences from other countries indicate that the subject conducting mediation and dialogue should be separate from who conducting trials Therefore, Judges who conducted mediation, dialogue on a dispute, lawsuit should not participate in hearing that case if mediation or dialogue failed, unless the parties agreed Moreover, Vietnam is in shortage of judges due to the staff downsizing policy, so it is clearly appropriate to choose who not in the payroll to be subjects conducting mediation, dialogue Retired judges and officers as procurators, investigators, inspectors, officials of retired local departments are proven by the pilot process to be competent and enthusiastic; this has also been proven by practices from countries around the world The survey results showed that the retired judges and officials desired to continuously contribute to society in high social and humane activities Therefore, mediation and dialogue are very suitable for them In addition, Vietnamese people have insufficient legal knowledge and little use of legal consultancy services, therefore, mediators and dialoguers play an important role in law dissemination and education The pilot results also showed that the retired judges and local officials had high prestige and gave people trust and sympathy As such, the retired judge and officials should be designated as the main sources of mediators and dialoguers In addition, dialogists to cover ad-hoc mediators, mediators of the Commercial Mediation Centers established under the Decree No.22/2017/ND54 Cp, lawyers, psychologists, who have high prestige in the community are also good sources of mediators and dialoguers Secondly, standards of mediators and dialoguers One of the important factors for mediator and dialoguers is the mediation, dialogue skill The pilot process showed that in addition to the skills acquired in mediation, dialogue skills training courses organized by the Supreme People’s Court and the local courts, the knowledges shared by mediation, dialogue experts, the mediators and dialoguers also applied their experiences of mediation and dialogue in the proceedings which they gained during the time being judges However, when the Law on court annexed mediation and dialogue is enacted and implemented effectively, the judges will conduct less mediation and dialogues sessions but focus on adjudicative activities and therefore, they will have less experience in mediation and dialogue Besides, the methodical and scientific skills training to improve mediation and dialogue effectiveness is implemented by many countries around the world In addition, retired judges and other officials also need to be trained and updated with legal knowledge regularly Therefore, participating in training courses on skills and professional knowledges of mediation and dialogue should be prescribed as mandatory conditions before appointing mediators and dialoguers Since the People's Courts are the agencies selecting and appointing mediators, it is best to recommend that the Court Academy should organize and implement the training course on skills and professional knowledge of mediation and dialogue and the Supreme People's Court issues certificates of training in mediation and dialogue skills Thirdly, the management of mediators and dialoguers The simple and flexible mediation, dialogue procedure indicates that the initiative and results depend mainly on the capacity and morals of the mediators and dialoguers Therefore, Vietnam should issue the code of ethics and conduct for mediators and dialoguers, which can refer to the regulations of some other countries such as Singapore, India and some Vietnamese commercial arbitration centers such as VMC110, Ho Chi Minh City Commercial Arbitration Center111 It is necessary to include provisions relating to the Code of Conduct for mediators, such as: competent authority to issue and manage the implementation of the Code of Conduct; the obligation to comply with the Rules of mediators, dialoguers, etc in the Law on court annexed mediation and dialogue Fourthly, the working scope of mediators and dialoguers The working scope of mediators and dialoguers is also an issue raised in the Law on mediation, dialogues at the courts, that is, whether a mediator, dialoguers may participate in mediation and dialogues at one or more mediation 110 http://www.viac.vn/hoa-giai-(menu)/quy-tac-dao-duc-cua-hoa-giai-vien-trung-tam-hoa-giai-viet-nama1489.html/, accessed on 10-2-2020 111 At https://tracent.com.vn/quy-tac-dao-duc-hoa-giai-vien/, accessed on 10-2-2020 55 and dialogue centers This depends on how to select and manage the mediators In case of recruiting mediators and dialoguers without number limitation and managing according to the number of cases, mediators and dialoguers may participate in mediations and dialogues at many mediation and dialogue centers If mediators and dialoguers are selected according to the case numbers of each Mediation Center and the mediators and dialoguers’ working time is managed, the mediators and dialoguers only participate in mediation and dialogue sessions at the mediation center where they are appointed This solution was implemented during the pilot process and showed effectiveness This solution is also suitable for the first phase of implementing a new mechanism, which makes it more convenient for the court to manage the mediators and dialoguers The courts can maintain a roster of mediators and dialoguers and review/update it from time to time Then also figure out a way to select from amongst the roster, either by lot, or rotation Fifthly, remunerations for mediators and dialoguers There are currently two common types of remuneration for mediators in the world, which are case-based and monthly-based payments Case-based remuneration generally applies where the mediator is a court collaborator who works part-time, and therefore the Court usually appoints an unlimited number of mediators South Korea is typical of case-based remuneration If Vietnam chooses a full-time mechanism for mediators and dialoguers and appoints a limited number of mediators and dialoguers, it is advisable to select the method of monthly-based combined with case-based remuneration, which is an addition reward for successful mediation, dialogue as in pilot time Moreover, the survey indicated that this remuneration method was chosen by the majority of mediators and dialoguers (See Figure 16 below) Chart 16: Mediators and dialoguers’ choice of remuneration methods 4.1.3 Role of Court The Court’s roles are to select and appoint a group or roster of mediators and dialoguers who meet all the requirements; to ensure the independence of mediators and dialoguers when conducting mediation or 56 dialogue At the same time, the Courts will support and create favorable conditions for the mediators and dialoguers to perform their duties effectively, such as assigning cases and determine a method of assigning in accordance with the capabilities of the mediators and dialoguers, organizing the skill training for mediators, dialoguers, assistance in sending invitations to involved parties to participate in mediation, dialogue sessions; to ensure remuneration, funding and material facilities The Courts will also reward and handle violations in a worthy and timely manner 4.1.4 Procedures for mediation and dialogue First of all, it is necessary to separate the mediation and dialogue procedure from the court proceedings in order to promote the flexibility and simplify the mediation and dialogue procedure; at the same time ensure the confidentiality of the mediation and dialogue process Secondly, a question is whether or not to consult the involved parties before transferring the case to the mediation or dialogue process This depends on many factors such as legal culture, educational level, people's awareness level of the mediation and dialogue mechanism Experiences of South Korea, a flexible and diversified country, indicate that the Court should automatically transfer to mediation because of the tense relations of the disputed parties, the lawsuit petitioner tended to refuse to mediate if being asked right from the beginning However, with the enthusiasm and competence, the mediator would help the involved parties to gradually share, sympathize and come to successful mediation South Korea even has a mechanism to encourage mediation, whereby the judge will issue a decision to encourage mediation even in cases where the parties have not expressed their opinions on the mediation plan, but also seem not to object (maybe because they are a little hesitant or afraid of losing face), within 15 days from the date of the Court's decision that neither party opposes, the decision takes effect As a result, the rate of successful mediation made by the Court’s encouragement decisions is higher than by the decisions agreed by parties on the entire dispute in the first place112 Since Vietnam has newly developed a new mediation and dialogue mechanism, many people not have a full understanding of this Therefore, transferring the case to mediation and dialogue without the procedure for consulting the involved parties should be chosen to create the initiative for the mediators and dialoguers, help to increase the chances of successful mediation and dialogue as proven by Korean experiences, as well as Vietnamese pilot experiences However, it is necessary to ensure the parties’ right of seft-determination if the mechanism is applied, that is, whenever receiving a request not to conduct mediation or dialogue of either party, the mediator or dialoguer should immediately transfer the case dossier to the Court for handling according to general procedures 112 Information provided by Judge Park Hyun Soo - Project Manager of Court capacity building project - KOICA Vietnam Office 57 Thirdly, it should be extended in complex cases or under the parties’ agreement to ensure the parties' right of self-determination and create conditions for them to have the opportunity of successful mediation, dialogue Fourthly, regarding the handling of the parties' requests for the application of temporary emergency measures (the lawsuit initiator files an application for requesting the temporary emergency measures application attached to the petition; or requests the application of temporary emergency measures in the process of mediation, dialogue conducted by the mediator, dialoguer) Due to the parties’ voluntariness of participating in mediation or dialogue session; having agreements and choosing mediation or dialogue plan, the Court does not impose coercive measures in the process of mediation and dialogue The Law on mediation and dialogue should stipulate that if one of the parties requests the application of temporary emergency measures, the Court shall not conduct mediation and handle the case in accordance with the Civil Procedure Code, the Administrative Procedure Law Fifthly, it is necessary to stipulate the rights, order and procedures for mediators and dialoguers to verify in practice, such as on-site evaluation; invite agencies, organizations, individuals to participate in the mediation and dialogue process, especially the family and children management agencies in the marriage and family disputes Sixthly, the support of local government agencies, especially the People's Committee of Commune level in sending invitations to the parties, supporting the organization of mediation session at the locality was very effective during the pilot time Therefore, it is necessary to stipulate in the Law on mediation, dialogue on the supporting role of local authorities Finally, the preparation of the mediation and dialogue minutes should involve the judge’s participation to grasp the contents of the case, create favorable conditions for the judge to issue a recognition decision of successful mediation and dialogue results This is also the experience of Japan and Korea The judge who assigned mediator/dialoguer can also be the judge involved in witnessing the making of the mediation and dialogue minute for that case 4.1.5 Recognition of successful mediation and dialogue As the successful mediation, dialogue results are the parties’ voluntariness, they often voluntarily implement it However, the recognition procedure for successful mediation results is still necessary to ensure the legality of the implementation process With the characteristics of court annexed mediation and dialogue (mediators, dialoguers are selected and appointed by the Court, the recording session of the mediation, dialogue results is organized with the participation of judges), the procedure recognizing the results of successful court annexed mediation and dialogue should be simpler than the current procedures for recognizing results of mediation outside the Court to ensure the 58 feasibility and effectiveness The simplification of the procedure should be reflected in the shortening of time and sequence The recognition of successful mediation and dialogue shall be conducted under the request of one of the parties In addition, the Law on court annexed mediation and dialogue should have a provision of the Court's recognition of successful mediation and dialogue results in part or in whole In theory, the parties can have an agreement on a part of disputes or complaints although it may be less likely to happen in practices Moreover, such provision is in accordance with the provision on out-of-court commercial mediation, which recognizes mediation results in part or in whole of the disputes that arise113 If it is a partial mediation, then the remaining nonagreed issues must continue in court 4.1.6 Handling of unsuccessful mediation and dialogue When mediation or dialogue fails, there should be a procedure to transfer the cases to the proceedings quickly, avoiding extension to affect the parties’ rights unless they withdraw the application In addition, the time for mediation and dialogue is not included in the statute of limitations for initiation of a lawsuit because the petition has been submitted to the Court before the mediator and the dialoguer conduct the mediation or dialogue Judges participating in mediations and dialogues must not participate in trials when the cases fails to ensure confidentiality However, if the parties agree, the judge can participate in adjudicating the case since he now understands the case dossier to be able to shorten the adjudication time (like Malaysia’ experience) 4.2 On implementation of the Law 4.2.1 Dissemination of the Law and public awareness This is a new and unique law with the principle of voluntariness throughout from the beginning to the end of the process of mediation and dialogue Public awareness measures implemented in the pilot are very useful and should be promoted, in which the role of the mediators and dialoguers when receiving and handling cases should be emphasized This type of propaganda is really close and has the strongest spread to the community Besides, it is necessary to disseminate and propagate on the media to agencies, units, organizations and people from grassroots (from commune level) to better support and coordinate in the implementation process of mediation and dialogue 4.2.2 Selecting, fostering and managing mediators and dialoguers Firstly, as soon as the Law is passed, the courts need to carry out the work of selecting and appointing mediators and dialoguers to ensure that they meet the duty requirements when the Law takes effect, in which it is necessary to 113 Clause 4, Article of Decree No 22/2017/ND-CP dated February 24, 2017 on commercial mediation 59 mobilize the mediators and dialoguers who have participated in the pilot to continue to act as mediators and dialoguers Secondly, the training and retraining in professional skills of mediation and dialogue need to be focused, in which the skills of identifying the psychology of the involved parties, especially child psychology, should be included in the training program of Vietnam Court Academy and and Law training schools The survey results showed the training and retraining needs of mediators and dialoguers as in Figure 17 below: Chart 17: Mediators and dialoguers’ need of training and retraining Accurate identification of the parties’ psychology creates conditions for the mediators and dialoguers to provide a mediation and dialogue phan that suits the parties’ wishes and aspirations, thereby increasing the chances of successful mediation, dialogue as well as shortening the time for mediation, dialogue Experience from the pilot has proven this However, at present, Vietnamese law universities not have training programs in this field Thirdly, it is necessary to provide legal training to mediators and dialoguers in order to timely update new legal provisions and remove difficulties and obstacles in applying In addition, it is possible to organize seminars of experience exchange between the mediators and dialoguers to resolve shortcomings, difficulties and obstacles in the practice of mediation and dialogue 4.2.3 Getting assistance from relevant agencies and organizations The assistance and support of agencies, organizations, national and international experts contributed positively to the success of the pilot Therefore, it is necessary to mobilize these resources to continue to support, especially in the dissemination of experience, training mediation and dialogue skills to mediators and dialoguers 60 4.2.4 On the development of mediation and dialogue centers in the future It is a common trend among countries, including typical Asian countries such as India, Singapore, Philippines and Malaysia to develop mediation centers at the Court Each country has its own model but the establishment of centers shows the specialization in mediation activities, separation from legal proceedings and convenience for the people to contact Vietnam can use the model of mediation and dialogue centers at the Court as piloted because the practice has shown effectiveness, whereby the centers are set up at district and provincial courts, the Court's leader is the head of the Center to facilitate the administration and management, such as assigning and supporting mediators and dialoguers; promptly proposing solutions to remove difficulties and problems in mediation and dialogue 4.2.5 Other issues In order to ensure the effective implementation of the Law, competent agencies should promulgate documents providing detail and specific guidance on the work of mediation and dialogue At the same time, it is necessary to ensure funding, facilities, especially the development of appropriate remuneration policies to encourage and create a peace of mind for mediators and dialoguers; development of a friendly mediation room model, suitable for children's psychology and convenient for people with disabilities Conclusion: Mediation and dialogue are valuable social and human activites, which have positive impact on social stability Court-annexed mediation is a method of resolving disputes with many advantages that are preferred in most countries and has been being the world's general trend The pilot mediation and dialogue activities at Vietnamese courts have recently achieved positive results The pilot process has mobilized high-quality human resources such as retired judges, people with judicial titles, lawyers, experts, etc., and showed the positive support role of the Court in mediation and dialogue In the current context of staff downsizing, mediation and dialogue have significantly reduced the cases to be tried, helped the Court to focus on improving the adjudicative quality of complicated cases Therefore, the enactment and effective implementation of the Law on court annexed mediation and dialogue are very necessary requirements./ 61 ... Information provided by the Chief Justice of the Supreme Court of India and the Chief Judge of the High Court of Delhi - India during the working visit the Supreme People's Court of Vietnam to India in. .. mediation minutes, dialogue minute at the conclusion of the mediation, dialogue session and the notes of mediator, dialoguers to serve the conduct of mediation and dialogue (4) Mediator and dialoguer... code of civil procedure In the German model, there are now three main types of mediation: the standard out -of -court mediation, out -of -court mediation upon proposal by the court, and mediation in