Chương II Luật Hòa giải, đối thoại tại Tòa án 2020: Hòa giải viên

Chapter II

MEDIATORS

Article 10. Requirements for appointment of mediators

1. A Vietnamese citizen who is permanently residing in Vietnam, loyal to the Fatherland and the Constitution of the Socialist Republic of Vietnam, has full legal capacity, good moral qualities, is exemplary in the observance of the law and meets all requirements below may be appointed as a mediator:

a) Used to be a Judge, Court Examiner, Court Clerk, Procurator, Procurator Inspector, Civil Judgment Executor, Inspector; having at least 10 years of experience as a lawyer, expert, or professional; being knowledgeable about customs and traditions and having prestige in the community;

b) Having experience and skills in mediation or dialogue;

c) Attaining fitness to complete the assigned tasks;

d) Possessing a certificate of professional training in mediation or dialogue conducted by a training facility of the Supreme People's Court, unless he/she has been a judge, court examiner of chief examiner or senior examiner level, court clerk of chief clerk or senior clerk level, procurator, executor of civil judgment, or inspector.

2. A person who falls into one of the following cases may not be appointed as a mediator:

a) Failing to meet the requirements specified in Clause 1 of this Article;

b) Having been an official or public employee; commissioned officer or non-commissioned officer of the People's Army, professional solider, worker and defense officer; People's Public Security commissioned officer or non-commissioned officer, or police worker.

3. The Chief Justice of the Supreme People's Court shall elaborate this Article.

Article 11. Appointment of mediators

1. A person who finds himself/herself satisfactory with all the requirements specified in Clause 1, Article 10 of this Law may submit an application for appointment of mediator to the court where he/she wishes to act as a mediator.

2. An application for appointment of a mediator comprises:

a) An application form for appointment;

b) A curriculum vitae and police (clearance) certificate;

c) A fitness to work certificate issued by a competent health authority;

d) A proof of eligibility prescribed at Point a, Clause 1, Article 10 of this Law;

dd) A certificate of professional training in mediation or dialogue prescribed at Point d, Clause 1, Article 10 of this Law.

3. Based on the need to appoint a mediator, the court which receives an application for appointment of mediator shall choose a qualified person and then request the chief judge of the People’s Court of province to consider appointment.

4. Within 20 days after receiving a duly complete application for appointment of mediator, the chief judge of the People’s Court of province shall consider appointing a mediator; if the application is refused, the chief judge must provide explanation in writing.

5. Within 7 days after issuing the appointment decision, the chief judge of the People’s Court of province shall publish the list of mediators on the website of the People’s Court of province and post up at the head office of the court where the mediator has worked; and at the same time send it to the Supreme People's Court for publication on the web portal of the Supreme People's Court.

6. The term of office of a mediator is 3 years from the date of appointment.

7. The Chief Justice of the Supreme People's Court shall elaborate this Article.

Article 12. Re-appointment of mediators

1. A mediator, upon the end of his/her term of office is considered for reappointment, except for the following cases:

a) He/she is no longer fit to work;

b) He has not completed the task;

c) He/she belongs to the list of 10% of mediators, in their workplace, who have the poorest performance to be substituted.

2. An application for re-appointment of a mediator comprises:

a) An application form for re-appointment;

b) A fitness to work certificate issued by a competent health authority;

c) A report on the process of performing mediation or dialogue tasks;

d) Evaluation and remarks of the court where the mediator has worked on the process of performing of the mediation or dialogue tasks.

3. The procedures for re-appointment and announcement of the list of mediators comply with Clauses 4 and 5, Article 11 of this Law.

4. The Chief Justice of the Supreme People's Court shall elaborate this Article.

Article 13. Dismissal of mediators

1. A mediator shall be dismissed in any of the following cases:

a) Upon the wish of the mediator;

b) The mediator no longer meets one of the requirements specified in Clause 1, Article 10 of this Law or in the case specified at Point b, Clause 2, Article 10 of this Law.

2. Upon any case in Clause 1 of this Article, the court where the mediator has worked shall request the Chief Justice of the People’s Court of province to consider dismissing the mediator. Within 03 working days after receiving the request, the Chief Justice of the People’s Court of province shall consider dismissing the mediator. This decision shall be sent to the dismissed mediator and the court for which he/she has worked.

3. Within 7 days after issuing the dismissal decision, the chief judge of the People’s Court of province shall remove the name of the dismissed mediator from the list of mediators and publish a list of dismissed mediators on the website of the People’s Court of province and post up at the head office of the court for which the dismissed mediator has worked; and at the same time send it to the Supreme People's Court for publication on the web portal of the Supreme People's Court.

4. The People’s Court of province shall revoke the mediator's card after removing the name of the mediator.

Article 14. Rights and obligations of mediators

1. Mediators have the following rights:

a) Conduct mediation for civil cases, dialogue for administrative lawsuits in accordance with this Law;

b) Request the parties to provide information, documents and evidence related to the content of the dispute and lawsuit; other relevant information and documents necessary for mediation or dialogue;

c) Examine the current conditions of assets related to the dispute or lawsuit before making a record on the outcome of the mediation or dialogue at the request of either party;

d) Invite prestigious persons to participate in mediation or dialogue; consult with entities with expertise in the field related to the dispute or lawsuit;

dd) Take no legal responsibility for the accuracy of information, documents and evidence provided by the parties;

e) Refuse to provide information, documents and evidence related to the civil case or administrative lawsuit, unless the parties so agree in writing or as prescribed by law;

g) Refuse to make a record on the outcome of mediation or dialogue if there are sufficient grounds to determine that such agreement or agreement violates the prohibition of the law, is contrary to social ethics or is intended to evade obligations to the State or other entities;

h) Be provided with training in professional practices, mediation or dialogue skills;

i) Be granted a mediator card;

k) Receive remuneration as prescribed by the Government;

l) Be given commendation as per the law.

2. Mediators have the following obligations:

a) Conduct mediation or dialogue according to the procedures specified in this Law;

b) Comply with laws, keep independent, impartial and objective;

c) Ensure confidentiality of information as prescribed by this Law;

d) Refrain from forcing the parties to mediate or engage in dialogue against their will;

dd) Refrain from receiving money, benefits from the parties;

e) Refuse to conduct mediation or dialogue if falling into one of the cases prescribed at Points a, b and d, Clause 1, Article 18 of this Law;

g) Respect the agreement of the parties, if the content of such agreement does not violate the prohibition of the law, is not contrary to social ethics, is not intended to evade obligations to the State or other entities;

h) Refuse to participate in proceedings as a presiding authority or officer in a case that he/she has conducted an unsuccessful mediation or dialogue and the case has been referred to the court for litigation settlement, unless otherwise provided for by law.

Article 15. Commendation and handling of violations committed by mediators

1. Any mediator who records achievements in performing their tasks shall be rewarded as per the law.

2. Any mediator who violates the provisions of this Law shall, depending on the nature and seriousness of their violations, be handled according to law provisions or be discharged from mediator job.

3. The chief justice of the People’s Court of province who has appointed a mediator is competent to impose a discharge on that mediator if he/she violates this Law.

4. A mediator who is discharged shall be removed from the list of mediators and has his/her mediator's card revoked. Procedures for handling, removal of name of the mediator and revocation of mediator's card shall comply with the provisions of Clauses 3 and 4, Article 13 of this Law.

5. A person who is discharged from mediator job may lodge a complaint with the chief judge of the People’s Court of province that has issued such a decision within 30 days after receiving the decision. The chief justice of People's Court of province shall handle the complaint within 30 days after receiving it.

In case of disagreeing with the complaint settlement decision, the complainant may continue to appeal to the Chief Justice of the Supreme People's Court within 15 days after receiving the complaint settlement decision. The Chief Justice of the Supreme People's Court shall handle the complaint within 30 days after receiving it. The decision on resolution of complaint made by the Chief Justice of the Supreme People's Court shall be final.

6. The Chief Justice of the Supreme People's Court shall elaborate this Article.