论调解员的调解终结权

为了限制当事人滥用调解自愿原则,保护社会资源,保障调解员的健康权,建议通过调解立法将调解终结权制度化,规范化。行使调解终结权应具足以下构成要件:具备调解员可以行使调解终结权的法定情形;调解员本身应具备一定的资质条件或者该调解组织具备相关的人力资源;调解员行使调解终结权在案件受理后,调解协议达成之前;调解员应书面知会当事人调解即将终止的事实、主要理由及当事人的主要权利等。调解员行使调解终结权时应履行告知义务、保密义务等各项附随义务,遵守相关的职业伦理。如有必要,调解员行使调解终结权时应依法履行评估义务或协助当事人评估调解终结后的纠纷解决程序。

On the Terminability of Mediation

It is suggested that an institutional and standardized terminability of mediation should be established through legislation in order to restrict the parties from abusing mediation voluntary principle, protect the social resources and the health right of mediators. The exercise of terminability right should be endowed with the following elements: the relevant legal situation under which mediators can exercise terminability of mediation; the mediator itself should have certain qualification conditions or the mediation organization has related human resources; the case has been accepted and the mediation agreement hasn’t been achieved; the mediator should inform the mediation parties the facts of terminability, the main reasons and rights possessed by the mediation parties etc in written form. The mediators are supposed to fulfill the obligations of informing, confidentiality and comply with the relevant occupation ethics. If necessary, the mediators shall perform the obligation or assist the parties to assess the evaluation after the end of the mediation of dispute settlement procedures.