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ChapterⅤ Mediation prior to the lawsuit
Part Ⅰ What is the reason for the mediation before lawsuit?
As a good rule of thumb, we usually deal with divorce proceedings into three phases. The first phase: Preparation before proceedings, the target of which is to investigate the details of the divorce case and collect relevant information; The second phase: Mediation before proceedings, the target of which is to mediate both parties, trying to persuade them to solve disputes through divorce by agreement; The third phase: proceedings. As disagreements between both parties are too hard to negotiate, they have to go to law for the court’s judgment.
Mediation before proceedings plays a very important role in divorce case. To the majority of the Chinese, under the influence of specific custom for thousands of years, no one is willing to bring a case to court, in particular, to divorce cases. The parties involved would not take priority to lawsuits, as there were too many bittersweet memories and too many complicated feelings with love and hatred. Furthermore, more than 70% of divorce cases are concerned with child custody and the visitation right, which may have perplexed connection between both parties for the whole life. If relations between both parties turn to be deadlock, it may exert some impact on their normal work and life.
Benefits of mediation before proceedings:
①Mediation can help both parties reach agreements.
Professional lawyers, as the title indicated, can assist communication between both parties, making the opposite party feel more respected. They can take advantage of their lawful knowledge and tactics to narrow gaps between both parties, playing an active role in mediation.
②Mediation can help save more time and energy.
If both parties reach agreements in this phase, they only need to go through procedures at divorce registry of Civil Affairs Bureau, saving several months’ time and energy on lawsuits.
③Mediation can help reduce costs and expenses.
Divorce by agreement only needs 10 Yuan or so, while if both parties have to resolve problems by divorce proceedings, they have to spend several thousand Yuan for counsel fees and court lawsuit fees from several ten Yuan to more than ten thousand Yuan.
④Mediation can help maintain good relation for both parties after divorce.
Divorce by agreement imposes less torment and harm on emotions of both parties, especially to those with children. Anyway, they have to communicate owing to their children. In short, dissolution of marriage in a friendly way is beneficial to both parties.
Part Ⅱ How can one party bring up a divorce?
At the end of love, this moment is filled with complicated feelings of love and hatred and it is really difficult for the parties involved to express the words “get divorced”. In the modern society, arranged marriages and mercenary marriages are next to nothing, no matter how sorrowful at present, they had experienced a relatively sweet memory at the very beginning when they fell in love with each other. Therefore, it is not an easy job for the party involved to express the request for divorce with ease.
Subject to different situations, generally speaking, there are two types of causes for divorce.
（1） Intolerable type
Both parties feel exhausted physically and mentally due to unceasing disputes after marriage. As a result of inharmonious characters or extra -matrimonial affairs, constant disputes or cold violence will undermine love between each other, making both parties mired in a sorrowful dilemma. They are easy to quarrel due to some trifles in family life, as both of them are suffering from depression and easy to get angry. Perhaps they have mentioned “divorce” for several times in quarrels, but those are not addressed in a formal way. Under such circumstance, it is quite natural to put up the request for divorce directly, as usually both parties have already made some preparation in their minds.
（2）The party unwilling-to-continue type.
It is fantastic that characters of couple are completely blending with each other. Different life concepts, educational background, psychological quality may lead to different demand for living standards. Even if one party has no fault at all, the marriage quality shall not be good if divorce is put up by one party. Usually the other party may have been already aware of this. However, due to various considerations and his/her own situation, the divorcer may be afraid of putting up the request with a concern that it will be refused by the other party. Therefore, we suggest that you tell the other party your request for divorce in two steps. The first step: making a hint. You can drop a hint of a possible request for divorce to the other party. Give a period of time to get with it. For example, use words about divorce to test the other party’s reaction; the second step: formal negotiation. You can negotiate with the other party about divorce sincerely and formally when he/she is in a stead mood. If condition permits, it is better to choose coffee shop or teahouse, which is a better environment for communication.
Part Ⅲ How should the indictment describe the reason for divorce?
In a matter of fact, it is difficult to depict reasons for divorce in the letter of complaint. After all, not all divorce cases are caused by extramarital love, family violence, maltreatment and the like. Just because people may demand more on marriage quality nowadays. No family violence. No extramarital love. Many people want to end marriage just due to difference on life concept or value of worth, which is unacceptable to those who hold traditional concepts. For instance, in divorce cases we once dealt with, some female divorcers wanted to dissolve marriage, as the male party had no ambition in his business; some of them made a totally negative impression on the male party just because of little trifles. Such kinds of reasons are difficult to depict. Anyway, we cannot frankly describe that I want to get divorced because of my extramarital affair or my wish to go abroad or the present marriage is shackles to my business or future development. It is really a headache in depicting divorce reasons.
Generally, divorce reasons in the letter of complaint have no substantial reference for the court’s judgment. The plaintiff will describe the defendant’s faults from his/her own stand with certain bias. So, judges dealing with divorce cases every day shall not easily trust reasons in the letter of complaint. What they will pay close attention to is objective facts of both parties, such as time of acquaintance, time of getting married, birth time of child, and amount of common property and so on. The court shall only adopt objective evidences for divorce raised by the persons involved. In conclusion, there is no need to say too much but some examples for disharmony or breakdown of marriage.
Part Ⅳ How should one party response to the other party’s request for divorce?
（1）Response with mental preparation
To the majority of couples, breakdown of marriage doesn’t happen overnight but the result of accumulated dissatisfaction. Couples themselves are aware of the possibility of divorce in the disharmonious conjugal life. The request for divorce must burst out due to long-term accumulation of conflicts. If you think it is too hard to hold together and decide to get divorced, it is better to suggest the divorcer planning out specific items about divorce agreements, such as division of common property, child custody and the like. You can present your own ideas and requests in the divorce agreement and try to communicate more with each other.
In fact, some persons involved will strongly refuse the divorce request, for the purpose to exert psychological pressure upon the divorcers to yield to, even if they know their marriage has already collapsed. This kind of method is not the best plan in my opinion, though it can help take the initiative some time. We will give you a detailed description about how to deal with it better in the following parts.
（2）Response without mental preparation
Indeed, there are some parties involved that have not enough crisis consciousness or have no due schemes owing to his/her character or background in face of divorce. For instance, he/she is the last person to know the spouse’s extramarital affairs. He/she just realizes when the other party has been deeply mired in dilemma of divorce. Under such circumstance, the party’s request for divorce is undoubtedly a shock to the other party, making the party involved live in a deep sorrow and tears. If you are faced with divorce request without any mental preparation, you’d better ask the divorcer to give you more time for consideration and introspection, to think over whether it is necessary to continue the following procedures from your point of view.
This type of parties involved is easy to do something on impulse in face of divorce request, as they cannot extricate themselves from their unreasonable mood. For example, they will go through procedures of divorce on impulse by drawing a totally unfair agreement on property division for themselves. After cooling down, they will deeply regret.
Part Ⅴ What is the reaction to invitation for a mediation of the adverse party’s lawyer?
Perhaps just because the couple knows too much about each other, in communication, people’s most realistic characters are exposing completely. Furthermore, under too much psychical influence, it is common to put up unreasonable requests during divorce by agreement. Faced with divorce, there is no trust between each other at all, so one party may not take a serious account of the other party’s suggestion. In other words, it is especially important to turn to lawyers for help.
The lawyer commissioned usually arranges a personal interview with the opposite party after learning about conjugal conditions and personal situations about the party involved.
If you receive invitation for negotiation from the lawyer commissioned by the opposite party, you can handle the lawyer according to your own specific situations.
First， you have the right to decline if you don’t want to get divorced or negotiate concerning property division and child custody. However, usually, if you decline the request for negotiation, you will receive the court’s summons soon. Divorce proceedings are unavoidable.
Second, if you think the marriage is indeed difficult to maintain, accept the lawyer’s invitation for negotiation and ask for some days’ consideration about it.
After receiving invitation for negotiation from the opposite party’s lawyer, the party involved will feel worried that it may be unfavorable to him/her in communicating with the lawyer of the opposite party. In our opinion, this viewpoint is incorrect. The lawyers only function in two aspects: one is to act as a bridge between two parties, promoting success of negotiation; the other is to get more relevant information. Sometimes, some clients may cover up situations unfavorable to him or her in depicting the case. The information the lawyer collected may be subjective or even totally wrong. Through communication with the opposite party, the lawyer can find out problems on the client, and then can do a better job in persuading the party involved for the purpose of success in mediation.
Part Ⅵ What’s the lawyer’s role in the mediation before lawsuit?
Generally speaking, the parties involved who enter into law firms must have negotiated with the other party about divorce agreements for hundreds of time, but they cannot come to agreements because of huge gaps or high demands presented by the opposite party, such as unreasonable compensation. They turn to lawyers for help in order to reach divorce agreements.
Specifically, there are two key functions of the lawyer’s mediation before lawsuit.
(1) Promoting divorce by agreement.
It is quite common that some people hold this kind of opinion that the participation of lawyers will bring mental pressure and a sense of urgency for divorce. Even if engaging a lawyer for the divorce case, they still have to face divorce proceedings if mediation cannot be reached. After all, most divorce proceedings bring up destructive hit to both sides, even if the parties involved shout out “There is no fear for lawsuit, and I will not stop until you die.”. However, if the lawyer deals with the case in a relatively fair angle, it will play an active role in promoting negotiation concerning divorce disputes for both parties.
Of course, lawyers are not magical figures, so they cannot resolve all the disputes via their eloquent tongue. Study proves that there is only 10 % or so in divorce cases with participation of lawyers in mediation. In other words, one in ten divorce cases can reach agreements by mediation. What’s more, some traits of cases reaching agreements by mediation are: both parties have better economic conditions or relatively higher educational background and so on.
(2) Further investigating into the case.
If the lawyer collects information about the case only through the client, it maybe has some or even huge misunderstanding, as the client always depicts the facts in his/her own eyes, especially concerning reasons or responsibilities for the breakdown. Hence, the lawyer should communicate with the opposite party to have a complete and objective cognition about the case. Some information, for example, the client doesn’t mention or weakens severity to some extent for some reasons, may be facts emphasized by the opposite party. In other words, communication between the lawyer and the opposite party is beneficial to know more about the case.
(3) Finding the points of disputes and narrowing gaps between both parties.
The divorcers may have already made a preliminary divorce plan, so they will present their requests and purposes when they turn to lawyers. For example, they have their own opinions about property division, child custody and responsibility concerning costs of aliment. Generally, before negotiation with the opposite party, the lawyer will deliver the client’s preliminary suggestions to the opposite party. Of course, there is sure to be a large gap between both parties. Anyway, both parties should think over the issues from their own angles. There are two possibilities of gaps between each other.
The First possibility: The opposite party may show strong dissatisfaction or objection to the client’s suggestions and bring up his/her own opinions.
The Second possibility: The opposite party opposes to the suggestions, but he/she doesn’t put up his/her own viewpoints out of misgivings or other reasons. He/she will require the client to make a concession.
Generally speaking, there are two kinds of discrepancy between both parties.
First, discrepancy in terms of the application of the law.
Discrepancy in terms of the application of the law refers to different understanding both parties hold concerning relevant laws. For example, in such a divorce case, both parties focus on the premises purchased before marriage. The premises were purchased by both parties but registered under the name of the male party before marriage. Are the premises regarded as the common property?
Second, discrepancy in terms of ethic morals.
The female party thinks that marriage breakdown is due to the male party’s extramarital affairs, so she requests the male party to pay compensation for spiritual damage, such as compensation for youth loss. As for such request, there is no legal ground but totally out of the female party’s advantage in the aspect of ethic morals.
Generally, discrepancy in terms of ethic morals is easy to solve through negotiation, because there is relevant legal ground on compensation in terms of ethic morals, but no mandatory enforcement. So, the amount usually depends on conscience of the other party. In the majority of divorce cases, the party asking for compensation will gradually reduce the expected price in face of reality. Thus, there is a high possibility of reaching agreements as gaps between both parties are narrowing in the course.
However, discrepancy in terms of the application of the law is difficult to resolve through negotiation. There is no ready-to-wear answer, sometimes even the judge dealing with disputes meets with the certain case for the first time. Before the court’s judgment, not only both parties, but two lawyers for both parties as well may hold different opinions on the case. Therefore, it is not quite easy to reach agreements through mediation with reference to big different understanding about the application of the law.
Part Ⅶ Who will engage in the mediation before the lawsuit?
Those who can act as mediators can be lawyers, as well as familiar friends of both parties, leaders or relatives. Relatively speaking, lawyers can play an important role in mediation.
In case non-lawyer acts as a mediator, he/she should have a good relationship between both parties. Because if the mediator is too much intimate with one party, it is easy to make the other party feel untrustful, which is not favorable to mediation.
Generally speaking, parents or relatives are not good enough to act as mediators. Blood relations are intimate in nature, so parents’ mediation usually walks far from justice.
Although the lawyer is engaged by one party, as the title and relatively highly cognition in society indicated, their expertise will be respected by the opposite party, which is favorable to the execution of mediation.
Part Ⅷ What are the steps and tactics for the mediation before lawsuit?
Generally, mediation before lawsuits is divided into three parts, i.e.: preliminary investigation; negotiation in depth and conclusion.
(1) Preliminary investigation
When accepting the case, the lawyer will take down ways of contact of the opposite party, such as telephones, email addresses, etc. Under the authorization, the lawyer will try to contact the opposite party when finishing preparation before lawsuits.
Generally speaking, there are three modes of response in face with invitation for negotiation from the lawyer commissioned by the other party.
First kind: Indifferent response, amounting to 20% or so.
For instance, the party involved shows indifference in receiving the phone of the lawyer of the other party. They may reply, “I don’t want to talk with the lawyer except for him/her directly.” and hang up the phone. Some of them may simply hang up without any reply. Under such circumstance, the lawyer himself/herself should give more understanding and tolerance, as the party involved in divorce is always in a quick temper. What the lawyer can do is persuade the indifferent party to consider for some days by telling them benefits of divorce by agreement.
Second kind: Negative response, amounting to 30% or so.
For instance, when picking up the phone, the party involved may not decline but directly ask what is your plans concerning conditions and division of property. As a rule of thumb, it is not a good idea to negotiate about specific items at the first contact, as at the moment the party involved may usually hold hostile feelings, their answers are usually unreasonable. Therefore, you’d better only explain your purpose of call and give him/her more time for consideration.
Third kind: Positive response, amounting to 50% or so.
For instance, it is really a good starting point that the party involved replies to the lawyer’s invitation for negotiation actively and agrees to meet in person. This doesn’t mean it is a success to mediation, but anyway it is beneficial to narrow gaps between both parties.
It is better to select the law firm, teahouse or coffee shop for negotiation, as the environment is relatively quiet.
From my point of view, the biggest tactic for negotiation is pragmatism and sincerity, especially to marriage-related lawyers. There is no need to show off your profession, but give more respect to the party involved, trying to feel his/her stress and misery. Empty words or extravagant talks are absolutely unnecessary. Furthermore, it is better to mediate from a moderate and fair angle, trying to objectively analyze advantages and disadvantages. Simply safeguarding the client’s rights and interests is not desirable at all. If mediation fails, they have to go to law waiting for the court’s judgment. In my opinion, as long as the lawyer’s analysis is fair and reasonable with ample evidence, even if both parties hold hostility with each other, they will take the lawyer’s words into serious consideration.
(2) Negotiation in depth
Some cases may hastily conclude without communication in depth and go into the next step, and nearly 70% of such cases may bargain over specific rates and conditions regarding allotments. Grounds for such kind of bargain lie not only in terms of the law but with feelings as well. For instance, the male party should care for the female party; the party bringing up child should be cared; the party with faults should take care of the party without faults. There are two kinds of results: either both parties narrow their gaps step by step or they come to a deadlock.
Usually, communication in depth between two parties needs more than two weeks in negotiation, maybe over one month or even longer. In my opinion, it is not a bad thing at all. On the one hand, if negotiation lasts for too long, it will make both parties feel exhausted, especially under more and more obvious stress from people in family, work or society. But on the other hand, it will make them reduce their expected price in mind, helping to reach agreements. Of course, if both parties are willing to compromise, more time and energy can be put on other worthy things rather than divorce cases.
(3) Conclusion
In general, through several weeks’ negotiation, gaps between both parties concerning conditions of divorce are gradually narrowing. There are three types of plans in conducting divorce.
First: Dealing with divorce in line with laws. Both parties come to agreements on division of common property, child custody pursuant to relevant laws and regulations. If there are no big disputes about the application of the law, this type of plan may be similar to the court’s judgment.
Second: Adopting the expected plan of the divorcer. Generally speaking, the expected plan of the divorcer is more favorable to the other party. After all, the divorcer is willing to compromise on conditions of divorce as long as within his/her tolerable scope.
Third: The expected plan of the party who is requested to get divorced. Usually, the party involved in divorce may bring up demands higher than allotments required by the court or conditions the divorcer expecting to offer, as the divorcer often wants to get divorced as quickly as possible.
If both parties’ demands are difficult to strike a balance, the lawyer should compare and analyze the gaps and reasons. As for infeasible demands from the divorcer or the opposite party, the lawyer should take the suitable medicine to the illness for each party, trying to persuade them to accept mediation.
In case there is no hope to bridge gaps between both parties, the divorce case shall go through proceedings. |
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