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During the resolution of civil and administrative disputes, mediation and dialogue at the Court play an important role in helping the parties find a solution without having to go through a prolonged trial process. This is a dispute resolution method based on agreement, with the support of a mediator or judge, aiming to achieve consensus among the involved parties.
Mediation and dialogue not only help resolve disputes effectively but also contribute to protecting the legitimate rights of the parties without worsening their relationship. Particularly, in civil, commercial, or family disputes, this method can help maintain cooperative relationships and avoid prolonged confrontation.
Additionally, mediation and dialogue help reduce the burden on the judicial system, preventing court overload, thereby enhancing the efficiency of adjudication and promoting the swift and transparent administration of justice. However, many disputes in Vietnam currently conduct mediation and dialogue in a spontaneous manner, correct in objective but inappropriate in form.
This may be acceptable in small-scale disputes but is unsuitable for dispute resolution at the Court. The following article will analyze the process of mediation and dialogue at Vietnamese Courts based on the provisions of the Law on Mediation and Dialogue at the Court 2020, No. 58/2020/QH14 (“Law on Mediation and Dialogue at the Court 2020”).
Legal Basis for Mediation and Dialogue at Vietnamese Courts
According to Clause 2, Article 2 of the Law on Mediation and Dialogue at the Court 2020, court mediation is a mediation activity conducted by a Mediator before the Court accepts a civil case, aimed at assisting the parties in reaching an agreement to resolve the civil case under the provisions of the Law on Mediation and Dialogue at the Court 2020.
Dialogue at the Court is a dialogue activity conducted by a Mediator before the Court accepts an administrative case, aimed at assisting the parties in reaching an agreement to resolve administrative complaints under the provisions of Clause 3, Article 2 of the Law on Mediation and Dialogue at the Court 2020.
Mediation and dialogue are conducted based on the principles of respecting the voluntary agreement and consensus of the parties, and no party may be coerced into an agreement or consensus against their will. The mediation and dialogue agreements must ensure equality in rights and obligations among the parties.
The fundamental difference between mediation and dialogue lies in their scope of application, where mediation applies to civil, marriage & family, commercial business, and labor disputes, while dialogue applies to administrative complaints.
The content of the mediation and dialogue agreements must not violate legal prohibitions, contravene social ethics, evade obligations to the State or other organizations, individuals, or infringe on the lawful rights and interests of other organizations or individuals. The mediation and dialogue methods are conducted flexibly, suitable to the actual circumstances and characteristics of each case.
Process of Mediation and Dialogue at Vietnamese Courts
Article 16 of the Law on Mediation and Dialogue at the Court 2020 clearly stipulates the mediation process to ensure transparency and fairness in dispute resolution.
First, when a dispute arises, the petitioner or requestor may submit a petition or request for resolution of a civil case or administrative complaint, along with supporting documents and evidence, to the competent Court. The Court receives, registers, and confirms the valid receipt of the petition from the applicant.
Within 02 working days from the date of receipt of the petition, if it does not fall under the cases where mediation and dialogue are not permitted, the Court will notify the petitioner or requestor of their right to choose mediation, dialogue, and a Mediator. The petitioner or requestor has 03 working days to respond in writing or by other means. If they appear at the Court in person to present their opinion, the Court will record the statement.
Depending on the petitioner or requestor’s response, the Court may assign a Judge in charge of mediation and dialogue if they agree to mediation and dialogue. If the parties do not agree to mediation and dialogue, the petition will be processed under procedural regulations.
If no response is received, the Court will issue a second notification to the petitioner or requestor regarding their right to choose mediation, dialogue, and a Mediator if they have not provided an opinion.
If after 03 working days from the second notification, no response is received, the Court will assign a Judge in charge of mediation and dialogue. The Court will issue a written notification about the transfer of the case to mediation and dialogue and appoint a Mediator for the involved parties.
Within 03 working days after receiving the notification, the respondent must respond on whether they agree or disagree with mediation and dialogue. If they agree or do not respond, the Mediator will conduct mediation and dialogue. If they request a change of Mediator, the Judge will appoint another Mediator. If they disagree, the Court will process the petition under procedural regulations.
The time spent on mediation and dialogue is not counted in the statute of limitations for filing a lawsuit or the time limit for case processing under procedural regulations.
Notes on Mediation and Dialogue at Vietnamese Courts
During the implementation of mediation and dialogue procedures at Vietnamese Courts, the parties should be aware of common mistakes that may nullify the legality of mediation and dialogue results. Complying with the correct procedures and clearly identifying the requirements for conducting mediation and dialogue in Vietnam will help protect the parties’ rights effectively while encouraging the development and dissemination of a more amicable and sustainable dispute resolution method.
Legality of Mediation and Dialogue Outcomes
The legality of mediation and dialogue outcomes in court is strictly regulated under the 2020 Law on Mediation and Dialogue at Court to ensure fairness, transparency, and to prevent abuse. One of the key aspects is the legal validity of the successful mediation minutes.
According to Article 33 of the 2020 Law on Mediation and Dialogue at Court, if the successful mediation minutes meet all legal requirements, they will have the same legal effect as a legally binding court judgment or decision. This means that the parties must comply with and implement the terms of the agreement without the need for a trial process.
However, in certain cases, if the minutes contain unlawful content, violate social ethics, or are established under coercion or fraud, the court has the authority to refuse recognition. This measure is intended to protect the legitimate rights and interests of the parties and prevent mediation from being misused to legitimize illegal acts.
Furthermore, if mediation fails, the parties still have the right to pursue dispute resolution through formal litigation procedures at the court. Importantly, pursuant to Clauses 1 to 3 of Article 4 of the 2020 Law on Mediation and Dialogue at Court, all information exchanged during the mediation session is strictly confidential. The content discussed during mediation cannot be used as evidence in court proceedings.
This regulation encourages parties to engage in mediation in good faith without fear that negotiation details could later be used against them if mediation fails. It also ensures the confidentiality of the mediation process and prevents parties from using mediation as a means to gather information for future litigation without a genuine intention to resolve the dispute outside the courtroom.
Common Mistakes to Avoid in the Mediation and Dialogue Process
During mediation and dialogue at court, several common mistakes can undermine the legality and effectiveness of the process.
First, one of the most critical mistakes is failing to prepare adequate documents and evidence. Without clear evidence, a party’s argument becomes weak, reducing the likelihood of reaching a favorable agreement. Additionally, a lack of understanding of one’s rights and obligations may result in accepting unfavorable terms or failing to safeguard one’s legal interests.
Moreover, a lack of good faith and cooperation can lead to mediation failure. Some parties participate in mediation without a genuine desire to resolve the dispute but rather as a tactic to delay legal obligations, wasting time and undermining the essence of mediation, which is to seek mutual agreement.
Another significant mistake is accepting an agreement without thoroughly assessing its legal consequences, which can lead to severe risks. If a party does not carefully review the terms, they may be bound by unfavorable commitments, while the other party may take advantage of legal ignorance to gain an advantage.
Lastly, a crucial mistake is when mediators fail to maintain neutrality and impartiality. If a mediator exhibits bias or influences the mediation outcome in favor of one party, the fairness of the process is compromised, and the successful mediation minutes may be rejected by the court.
To avoid these pitfalls, parties should prepare thoroughly, engage in mediation with a cooperative attitude, carefully evaluate the agreement’s terms, and ensure that the mediator remains impartial. Only by meeting these conditions can mediation and dialogue at court become an effective dispute resolution method that protects legal rights and enhances the quality of Vietnam’s judiciary system.
Most importantly, parties participating in mediation and dialogue at court should approach the negotiation table as if they were in a formal litigation process. However, attempting to handle mediation or dialogue alone without the legal support of an experienced dispute resolution lawyer is highly impractical.
To achieve the best possible outcome with sound legal reasoning aligned with Vietnamese law, parties engaged in court mediation and dialogue should consider seeking legal consultancy services from reputable law firms specializing in litigation and dispute resolution in Vietnam.
The Role of Lawyers in the Mediation and Dialogue Process at Vietnamese Courts
Mediation and dialogue at court serve as essential dispute resolution mechanisms that reduce the burden on the judicial system, save costs, and expedite resolution for involved parties. In this process, lawyers play a crucial role in guiding parties toward informed decisions, preparing legal documents, and formulating effective negotiation strategies.
Before mediation or dialogue begins, lawyers analyze the case and advise clients on alternative dispute resolution (ADR) options such as negotiation, out-of-court mediation, or arbitration.
Selecting the appropriate method helps maximize the protection of the client’s rights and ensures efficiency in dispute resolution. Additionally, lawyers are responsible for gathering evidence, drafting legal documents such as mediation requests, legal opinions, and proposed settlement options. Well-prepared documentation enhances the persuasiveness of arguments during mediation.
A key role of lawyers is to identify the strengths and weaknesses of a case and develop solid legal arguments to support their client’s position. Lawyers also help clients evaluate whether to accept or reject proposals from the opposing party to secure the most favorable agreement. During pre-mediation and dialogue, lawyers act as skilled negotiators, guiding clients on how to frame questions, counter opposing arguments, and adapt strategies flexibly to achieve the desired outcome.
Lawyers are not only legal representatives but also strategic advisors who support clients throughout the mediation and dialogue process. With thorough preparation and legal expertise, lawyers contribute to fair agreements, preventing prolonged disputes and reducing pressure on the court system.
However, parties engaging in mediation and dialogue in Vietnam should be aware that lawyers may not always participate in mediation and negotiation in the same capacity.
Under Clause 13, Article 70, and Point a, Clause 2, Article 75 of the 2015 Civil Procedure Code, litigants have the right to seek legal representation to protect their legitimate rights and interests. Lawyers participating in litigation under the Law on Lawyers may act as legal representatives if requested by the litigant and upon completing registration with the court as a legal representative.
However, if a case is referred to a mediation and dialogue center under the 2020 Law on Mediation and Dialogue at Court, the role of the lawyer changes. Specifically, the lawyer may no longer participate as a legal representative protecting the litigant’s rights but can only act as an authorized representative, in accordance with the list of participants allowed under Clause 1, Article 25 of the 2020 Law on Mediation and Dialogue at Court.
Thus, if lawyers wish to continue participating in the case, they and their clients must sign a power of attorney agreement, allowing the lawyer to act as an authorized representative.
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