Recommendations to Improve the Quality of Mediation in Marriage and Family Cases

more closely and clearly. For example, if a party has been properly summoned and is absent for the second consecutive time without a valid reason, he/she must bear the legal consequences as prescribed by the laws and in which case it is considered "having a valid reason". In case there is a valid reason for not being present according to the Court's summons, the Court must be notified. The Court shall assess whether the reason for absence is legitimate or not based on the provisions of the Laws, for example, medical records showing the treatment process, family matters confirmed by the People's Committee where the party resides, receiving a summons but the date of the Court's summons has passed... the party must provide these documents before the date stated in the Court's summons, or notify the Court again in case of receiving a summons but the date of the summons has passed, only then can the objectivity of the reason for absence be ensured.

In the case of divorce with one party suffering from mental illness, reconciliation is not possible because the person suffering from mental illness is incapable of perceiving and controlling his/her behavior. The Civil Procedure Code needs to have specific regulations guiding the divorce with one party suffering from mental illness. Specifically, Article 182 of the Civil Procedure Code needs to add that the case of divorce with a person suffering from mental illness is a case that cannot be reconciled.

According to Article 78 of the Civil Code, missing is a person who has been missing for two consecutive years or more, despite having applied all notification and search measures as prescribed by law, but there is still no news of whether that person is alive or dead. Thus, when conducting divorce proceedings with one party being a missing person, serving procedural documents to the parties is impossible, and conducting a conciliation session is meaningless. The Civil Procedure Code needs to have specific regulations on divorce proceedings with one party being a missing person in the direction that there is no need to serve procedural documents to the missing person. Accordingly, Article 182 of the Civil Procedure Code should add that the case of divorce with a missing person is a case of no reconciliation.

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- About the composition of the conciliation session.

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Article 184 of the Civil Procedure Code should supplement the composition of the conciliation session, including the person protecting the legal rights and interests of the parties. This helps the conciliation process to be faster and more effective in cases where the parties do not understand the law. On the other hand, it ensures consistency in procedural law between the provisions of Article 64 and Article 184 of the Civil Procedure Code.

There should be specific guidance on the phrase: "does not affect the rights and obligations of the absent party" in Clause 3, Article 184 of the Civil Procedure Code.

- On the decision to recognize the agreement of the parties.

The lack of regulation on how to resolve the case in which the parties reach an agreement within seven days from the date of making the successful conciliation record is a shortcoming of current law that needs to be supplemented in the direction that, in the case that within seven days from the date of making the successful conciliation record, the parties make changes in the direction of a new agreement, the Court will make a new successful conciliation record, and after seven days from the date of making the first record, if the parties do not make any other changes, the Court will issue a decision recognizing the parties' agreement.

In the case where the Court has decided to bring the case to trial and the parties have reached an agreement on the settlement of the case and request the Court to recognize it, it shows that the above-mentioned views on the application of law are consistent in terms of both legal basis and theoretical and practical basis. However, because the Civil Procedure Code only stipulates that within one month from the date of the decision to bring the case to trial, the Court must open a trial; in case of legitimate reasons, this period is two months and does not stipulate that within this period the Court may conduct other procedural proceedings or issue a Decision recognizing the agreement of the parties. Therefore,

In order to ensure uniform application of the law; respect the right to decide and self-determination of the parties, save time, speed up the progress of case settlement, save costs for both the parties and the agencies conducting the proceedings when having to open a trial, the Civil Procedure Code should supplement the provisions that before the Court opens the trial, from the date of the Decision to bring the case to trial as prescribed in Clause 3, Article 179 of the Civil Procedure Code, if the parties voluntarily agree with each other on the settlement of the case, not contrary to the law and social ethics, the Judge assigned to settle the case, based on Articles 186 and 187 of the Civil Procedure Code, shall draw up a Record of successful conciliation and issue a Decision recognizing the agreement of the parties according to the procedures prescribed in Chapter XIII (Conciliation and preparation for trial) of the Civil Procedure Code .

3.2.2. Recommendations to improve the quality of mediation in marriage and family cases

From the above analysis, to improve the quality of mediation in the process of resolving family and marriage cases from the perspective of law enforcement, the following measures need to be taken:

- For judges : According to Article 184 of the Civil Procedure Code, the judge is the person who presides over the conciliation session. Conciliation is truly effective when the judge has a firm grasp of the provisions of the law, has skills, methods and experience. However, in reality, not all judges have all of the above skills, leading to the quality and effectiveness of resolving cases that do not meet the requirements of the purpose of conciliation. Especially for family marriage cases, it is not only required that the conciliator has in-depth legal qualifications but also needs to have knowledge of society and experience in family life. If the divorce case is assigned to a judge who is too young or has no family to resolve, it will be difficult for that judge to make the conciliation work achieve high results, because the purpose of resolving a divorce case is not to meet the requirements of the plaintiff or defendant but to avoid the breakup of a

family, avoiding bad consequences caused by divorce. Therefore, in order to improve the professional qualifications of judges, on the one hand, the Court sector needs to pay great attention to improving the capacity of judges by regularly opening professional training courses for judges. Every year, the Court sector opens many professional training courses, but mainly in the criminal and administrative fields, while there is almost no mediation of civil cases, while the practice of adjudication has proven the importance of this procedure, so we need to regularly open professional training courses for judges on mediation procedures. On the other hand, raising awareness for judges to promote a sense of responsibility for their work, clearly defining their position and role while conducting mediation. In particular, it is necessary to have skills and a specific plan before conducting mediation. Normally, the development of a mediation plan is carried out through the following steps:

Step 1. Prepare facilities and material conditions:

Arrange separate mediation rooms, arrange the seats of the Judge, Secretary and litigants reasonably, both solemn and open, creating comfort for the litigants.

Step 2. Collect and fully research documents and evidence:

Take the appropriate time to carefully study the file. Grasp the cause of the dispute, one or more legal relationships that the parties are disputing, understand the content, nature, level of the dispute, the psychological attitude of the parties in each case, determine the specific requirements of the parties in the case, the contents that the parties have agreed on and the contents that are still in conflict to determine; which factors and conditions are best and beneficial for the parties to reach an agreement according to the Judge's conciliation plan.

Develop a plan to handle situations that may arise between the parties at the mediation session.

Can approach and influence in a positive conciliatory manner towards each

parties to understand the wishes and intentions of each party before conciliation.

It is possible to meet or contact a number of relevant agencies to support the reconciliation process.

In divorce cases, it is necessary for the Judge to contact local authorities and residential groups before conducting mediation to grasp the actual situation and conflicts that have occurred (if any) in order to have appropriate mediation methods for each specific case.

Step 3. Choose a time for reconciliation:

After the Judge processes the information necessary for organizing the mediation session, the Judge organizes the mediation session if the collected data, when the mediation has a very high possibility of successful mediation.

There is the best solution for conflicts surrounding legal relationships that the Judge must influence, helping the parties to easily reach an agreement.

Grasp the strengths and weaknesses of each party to negotiate, bargain, and increase or decrease the benefits of each party to reach a common consensus.

In a divorce case, the Judge should pay attention to:

The possibility of the couple reuniting is very high, so arrange for them to reconcile immediately.

It is possible that they will reconsider and change their mind about divorce. In this case, reconciliation should not be brought up immediately. Instead, the judge needs to find out and assess what problems they still have with each other and what can be done to reconcile them. From there, the judge can take appropriate measures to further influence them until he assesses the possibility of them being reunited, and then proceed with reconciliation.

If they don't listen to anyone, they are too determined, and there is no way to reconcile, then the judge will conduct mediation to complete the procedures to bring the matter to trial.

In mediation, the Judge needs to be patient and avoid the situation of conducting a perfunctory mediation to make a record of unsuccessful mediation to complete the procedures before bringing the case to trial. At the same time, it is necessary to distinguish the mediation procedure in each stage.

The method of choosing the time of mediation is very important in determining the success of the mediation. Mediation can be conducted many times at different times during the preparation stage for the trial.

Having good mediation skills requires the judge to have a "heart". In theory, when the parties cannot negotiate with each other and have to file a lawsuit, it means that the conflicts are at a very high level. Therefore, the judge must be persistent and actively act as a bridge to help the parties find a common voice. Always be flexible in communication to listen to things that they normally cannot confide in a third person. Choose the right time to influence the thoughts and feelings of each party to guide them. Calmly find out the cause of the conflict, the conflict from one side or both sides, the level of the conflict. The main points of the conflict, which conflict points are important, if this conflict can be resolved, it will be the key to open the door to an agreement to resolve the case. If necessary, mediation can be conducted many times but still ensure the procedural time limit prescribed by law.

- Raising legal awareness for people:

The work of disseminating and popularizing the law to all people has always been of interest to the State and is regularly implemented, but the results have not been high. The practice of resolving marriage and family cases shows that the parties make requests that have no legal basis, which makes the mediation of the case more complicated and difficult to reconcile successfully.

To raise people's legal awareness, it is necessary to synchronously deploy forms of legal dissemination and propaganda: Propaganda on mass media, propaganda through conferences, propaganda through grassroots mediation work, through court trials, and through the cabinet.

Law books, through Law Club activities, through competitions... In addition to promoting the effectiveness of these forms, for rural and remote areas, it is necessary to choose appropriate forms such as: distributing books on law implementation; organizing regular talks on the law in residential areas; increasing diverse, continuous and attractive broadcasting forms on district and commune radio systems... Propagating immediately when conducting mediation when resolving cases.

- Strengthen mediation activities at the grassroots level.

For family and marriage cases, the law only encourages the parties to reconcile at the grassroots level before filing a lawsuit in court. However, mediation at the grassroots level is considered a measure that "contributes to resolving conflicts and disputes among the people, building Vietnamese people who live with a sense of community, compassion, tolerance, respect for loyalty, respect for the law, and harmonious relationships in the family and society". The survey results to assess

The impact assessment of the Law on Mediation at the grassroots level shows that mediation is mainly used to resolve minor disputes between neighbors (36.3%), inheritance disputes ( 21.8 %) and cases involving physical violence ( 21.8%). Only

20.7% of people have not been

solution in line

area

related to land, construction

surplus

g said that they had a need to resolve the dispute through a Mediator.

Only 7.4% of people stay

choose

method of settlement of disputes on

marriage and family and this figure is 11.9 % for all cases .

dispute

related to how

force

family . The most important goal of grassroots mediation

with family marriage cases is to increase the rate of successful reconciliation, thereby preserving the love between husband and wife, solidarity in the family, preventing violations of the law through the discovery and resolution of conflicts, small disputes, contributing to stabilizing social order in residential areas. In addition, the high rate of successful reconciliation will contribute to limiting petitions and complaints among the people, reducing the number of complaints to the People 's Court , state administrative agencies .

water, saving time and costs for state agencies and citizens.

Above are some recommendations on law enforcement and law making to improve the effectiveness of civil mediation in general and family law in particular. In addition to supplementing and amending current legal provisions to suit the current practice of resolving marriage and family cases, competent authorities need to issue a separate resolution guiding the procedures for resolving marriage and family cases according to the provisions of the Law on Civil Procedure. Because marriage and family cases are a type of civil case but have a special nature due to the emotional factor being the most fundamental factor governing the entire marriage and family relationship, it needs separate regulations to adjust accordingly.

CONCLUSION OF CHAPTER 3

From the analysis of the adjudication work of the People's Courts at all levels, the thesis has evaluated the results achieved in the mediation of HM&F cases in court. That further affirms the important meaning of conducting mediation for any civil case.

Through the study of the practical implementation of law and application of law in the mediation of HM&F cases from the achieved results and remaining limitations, the thesis has made a number of recommendations to improve the law and enhance the effectiveness of mediation of HM&F cases.

Based on the recommendations that the thesis puts forward, it will help to resolve disputes in marriage and family more conveniently, improve the efficiency of the courts, increase the rate of successful reunification, maintain the sustainable development of each family - the cradle of society and create trust in the people's hearts towards the law and the Socialist Republic of Vietnam.

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