Abstract
The mediation system, the history of which can be traced back to the period of Japanese rule in Taiwan, is one of the mechanisms for alternative dispute resolution. To lessen the burden on the courts and to provide parties an approach to resolve disputes, the Judicial Yuan has promoted these mechanisms for several years . Regarding the mediation system in Taiwan, a distinction is made between court-annexed mediation and out-of-court mediation, which includes mediation in town and mediation in the administrative agencies. And each type is regulated by separate laws or rules with principles that protect procedural justice. The court-annexed mediation, which is regulated by the Code of Civil Procedure, includes both mandatory and voluntary mediations, differing from mediation out of court. In addition, the newly-implemented Family Proceedings Law also mandates that contentious family cases must first go through court-connected mediation before litigation. Meanwhile, out-of-court mediation allows specific professional disputes to enter mediation proceedings. As for the mediators, mediation in court is primarily conducted by judges while mediation out of court is conducted by mediation committees selected by law. If mediation is successful, its effectiveness varies from type to type. Cross-border mediation is mainly governed by the Chinese Arbitration Association, with only a few cases mediated over the past 10 years.
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Notes
- 1.
Spangler, Brad. “Alternative Dispute Resolution (ADR).” Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: June 2003 <http://www.beyondintractability.org/essay/adr/>.
- 2.
Frank E. A. Sander, Address Before the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice: Varieties of Dispute Processing (April 7–9, 1976), 70 F.R.D. 79, 111–16 (1976); Ettie Ward, Mandatory Court-Annexed Alternative Dispute Resolution in the Federal Courts: Panacea or Pandemic?, 81 ST. JOHN’S L. REV. 77, 81 (2007).
- 3.
§ 15 a EGZPO.
- 4.
DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil and commercial matters.
- 5.
Tsung-fu Chen, Litigation and Social Development, Proceedings of the National Science Council Part C: Humanities and Social Sciences, 10[4], 43(2003).
- 6.
Duan Lin, The Antagonism Arising through the Differences between Chinese and Western Legal Concepts: The Derivation of Taiwan Law, Confucian Ethics and Legal Culture, pp. 214, Taipei: Chiliu (1994); Duan Lin, Confucian Ethics and Legal Culture, pp. 83–92 Taipei: Chiliu (1994); Duan Lin, Legal Awareness of the Chinese: The Example of the Modern Significance of the Mediation System in Taiwan, paper presented at the Interdisciplinary Conference on Way of Thinking and Its Modern Significance: The 4th Annual Conference on Chinese Psychology and Behavior, Taipei: Institute of Ethnology of Academia Sinica & College of Psychology of National Taiwan University (1997).
- 7.
Department of Statistics, Judicial Yuan, Judicial Statistics Yearbook (2007), 10. Types of Civil Cases Terminated in the First Instance by the District Courts – By Year, in: http://www.judicial.gov.tw/juds/index1.htm.
- 8.
Lian-Gong Chiou, The Legal Theory of Option of Civil Procedure, in: The Theory of Civil Procedure Option, pp.25-(2000).
- 9.
See Code of Civil Procedure Art. 403–462.
- 10.
See more in Township Mediation Ordinance, Family Proceedings Law, Government Procurement Law, Labor Dispute Settlement Law, Medical Law, Consumer Protection Act, etc.
- 11.
Lian-Gong Chiou, New Changes in Mediation Procedure, The Theory of Civil Procedure Option, pp. 192-, Taipei: Lian-Gong Chiou (2000).
- 12.
Department of Statistics, Judicial Yuan. Judicial Statistics Yearbook 2010, 27. State of Civil Mediation Cases Terminated by the District Courts – By Year, in: http://www.judicial.gov.tw/juds/index1.htm.
- 13.
According to the Selection Regulations of the Court Mediators established by the Judicial Yuan, the mediator is appointed by the president of each court, and the number of people chosen as mediators must be in accordance with the need of each district court. A list of mediators must be made and reported to the Judicial Yuan for reference. Anyone having one of the following qualifications may be appointed as mediator: (1) a person of good character and reputation; (2) a person enthusiastic about the work involved in mediation; (3) a person with a stable life and ample time to devote to the work of mediating; (4) a person in good physical and mental health; (5) a person with civil or familial experience in dispute resolution; (6) a person with extensive social knowledge or experience; or (7) someone possessing other qualities deemed appropriate (Article 4 of the Selection Regulations). After appointment, mediators are eligible to serve 2-year terms and when the term ends they must be reappointed if they are to continue to serve. However, the court may shorten the term according to its needs.
- 14.
See Code of Civil Procedure Article 426.
- 15.
See Government Procurement Law Article 86.
- 16.
See Labor Disputes Guidelines Article 24.
- 17.
See Regulations for the Mediation of Labor-Management Disputes Article 9, 10, 18, 19.
- 18.
See Draft for Medical-Management and Medical-Compensation Articles 13 and 17.
- 19.
See Consumer Protection Act Article 45–1.
- 20.
See Regulations for the Mediation of Consumer Disputes Article 10.
- 21.
See Code of Civil Procedure Part II Chapter II “Mediation Proceeding”, Article 77–20; Family Proceedings Law Article 33, 36.
- 22.
See Legal Aid Act Article 13.
- 23.
The Standard List, see in: http://www.laf.org.tw/tw/a2_2_2.php.
- 24.
See Legal Aid Act Article 14: “If an applicant meets one of the following conditions, the applicant may apply for legal aid without considering his or her financial capability:
1. Without retaining an attorney or representative, the defendant who is on trial for a crime which is punishable for more than 3 years or is adjudicated by the high court as the court of first instance.
2. Without retaining an attorney or representative, a defendant who is on trial and is unable to express himself or herself clearly because of mental retardation and the chief presiding judge considers it necessary to retain an attorney or representative for the defendant.
3. A person who is qualified as a low-income resident under the Social Relief Act.”
- 25.
Judicial Yuan. (2013, April 19). Judicial Weekly. Retrieved from http://www.judicial.gov.tw/jw9706/pdf/1641-1.pdf.
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Shen, KL. (2015). Mediation in Taiwan: Present Situation and Future Developments. In: Esplugues, C., Marquis, L. (eds) New Developments in Civil and Commercial Mediation. Ius Comparatum - Global Studies in Comparative Law, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-319-18135-6_25
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