Successful mediation results

 

The legal value of the successful mediation results

During the commercial mediation process, if the disputing parties successfully conciliate to resolve part or all of the arising dispute, the commercial mediator will make a statement of the successful mediation results.

The document on the successful conciliation result is effective for the parties in accordance with the civil law(*). However, “enforceable to the parties” here only means “binding the parties” as a contractual agreement. In case a party fails to perform or performs improperly as a result of successful conciliation, that party is only liable for the same liability as for a breach of other contractual obligations. The other party cannot request the enforcement agency to enforce the successful conciliation results.

But the result of successful mediation through commercial mediation center differs from conventional contractual agreements in that it can be recognized by the Court with a fairly compact procedure to be enforced under the law on civil judgment enforcement. .

Only the results of successful conciliation can be enforced by the Court

When a successful conciliation result is achieved through the dispute resolution procedure by commercial mediation, the parties can voluntarily carry out the successful mediation result without having to carry out any further procedures. However, in order to ensure that each party will perform its obligations under the successful mediation result, the parties may also request the Court to recognize the successful mediation result. The results of successful conciliation through commercial dispute resolution procedures recognized by the Court can be enforced as enforceable court judgments or arbitral awards. Successful conciliation results will be considered and recognized in accordance with the civil procedure law (*2).

Time line for requesting court recognition

The statute of limitations for requesting the Court to recognize the successful commercial mediation results is 6 months from the date the parties reach a successful conciliation agreement (*3). Therefore, if no party submits a request for recognition of the successful commercial mediation results within 06 months from the date on which the Document on the successful mediation results is made, the parties lose the right to request (*4).

However, the Court shall only apply the statute of limitations upon the request of a party or the parties to apply the statute of limitations, provided that this must be submitted before the competent Court issues a decision to settle the claim; The party benefiting from the application of the statute of limitations has the right to refuse the application of the statute of limitations, except where such refusal is for the purpose of evading the performance of an obligation (*5).

Conditions to be recognized by the Court

To be recognized by the Court, a successful conciliation through commercial mediation must satisfy the following conditions (*6):

1. The parties to the mediation agreement have full civil act capacity.
2. The parties to the mediation agreement have the rights and obligations to the content of the mediation agreement. If the content of the successful mediation agreement is related to the rights and obligations of the third party, the consent of the third party must be obtained.
3. One or both parties have an application to the Court for recognition.
4. The content of the successful mediation agreement of the parties is completely voluntary, does not violate the prohibition of the law, is not contrary to social ethics, is not intended to evade obligations to the State or a third person.

In the above recognition conditions, the Court will pay special attention to the condition that the content of the mediation agreement is “not intended to evade obligations to the State or a third person”.

Court has jurisdiction to recognize

Recognition of successful commercial mediation results is a civil matter, falling within the jurisdiction of the Court as prescribed in Clause 7 Article 27 of the Civil Code year 2015. The Court has the competence to handle requests for recognition of commercial mediation results. The city is the district-level People’s Court where the requesting party is an individual residing or working or the place where the requesting party is an enterprise is headquartered (*7). However, the requesting party also has the right to choose the Court where the requested party has assets to settle the request for recognition of the commercial mediation results (*8).

In case many parties or parties all request to recognize the successful commercial mediation results, the requesting parties may choose one of the competent courts according to the territory.

Procedures for recognition at the Court (*9)

The requesting party must submit the “Application for recognition of successful conciliation results” to the competent Court. Currently, there is no separate form for this to be issued, so REECMC is based on legal regulations to make an application form to assist the successful mediation parties to carry out the recognition procedure when needed.

Refer to commercial mediation accreditation application form

Procedures for receiving and processing applications for recognition of successful conciliation results comply with general regulations on civil matter settlement procedures. From the date of accepting the petition, the Court has 15 days to prepare and issue a decision to open a meeting to consider the petition; within the next 10 days, the Court will hold a meeting to consider the petition. The participants in the meeting and the procedures for conducting the meeting follow the general regulations on civil matter settlement procedures, whereby the meeting is also attended by the procurator of the procuracies of the same level.

The judge shall issue a decision to recognize or not recognize the successful conciliation results when the above conditions are fully or not fully met. The decision to recognize or not to recognize the successful conciliation result takes effect immediately, without being appealed or protested against according to appellate procedures.

• Refer to sample of decision to recognize successful mediation results
• Refer to sample decision not to recognize successful mediation results

However, the failure to recognize the successful mediation results outside the Court does not affect the content and legal validity of the successful mediation results. The decision to recognize the successful conciliation results shall be enforced in accordance with the law on civil judgment enforcement.