The Practical Dilemma,Theoretical Basis and Optimization Path of Notarial Mediation
Notarial mediation is not merely a preventive legal system;it also serves the function of resolving disputes.Consequently,it should be incorporated into the multifaceted framework of dispute resolution mechanisms employed in the context of litigation governance.The historical evolution of notarial mediation can be roughly divided into three stages:the"limited mediation"model,the"extensive mediation"model,and the"judicial auxiliary affairs participation"model.These stages demonstrate development characteristics that resonate with the modernization of the rule of law in China.However,notarial mediation faces the following three dilemmas in practice,which seriously affect its effectiveness in resolving disputes:(1)disorderly operation of the system due to lack of normativity;(2)reliance on people's mediation and judicial power;(3)blurring of institutional functions.At the theoretical level,the legitimacy and independence of notarial mediation need to be demonstrated.First,notarial mediation has both internal and external bases of legitimacy.The polycentric social governance model and the protection of citizens'legitimate rights and interests constitute the external legitimacy basis of notarial mediation.Meanwhile,the general trend of notarial reform,including functional expansion,evaluation-type mediation,and the comparative advantages of mediation at the interface with multifaceted notarial services,constitute the internal legitimacy basis of notarial mediation.Second,the key to the independence of notarial mediation from people's mediation lies in the source of the right to mediate.The mediation power of people's mediation essentially belongs to the power of mass self-governance at the grassroots level,while the mediation power of notarial mediation is derived from the notarization power.Finally,the key to the independence of notarial mediation from judicial power lies in its institutional attributes.Whether analyzed from the perspective of the nature of the mediation power or the nature of the subject of mediation,it can be concluded that notarial mediation is a form of social mediation.At the institutional level,suggestions for improvement need to be provided,guided by the contingent logic of notarial mediation.First,a three-step general plan for the improvement of the notarial mediation system should be established,guided by the logic of standardization.In conjunction with the revision of the Notary Law and the enactment of the Mediation Law,the procedural provisions for notarial mediation need to be refined,and certain matters should be referred to industry autonomy rules.Second,the independent development of notarial mediation should be ensured,guided by the logic of socialization.On the one hand,the various forms and methods of mediation must be delineated.On the other hand,a model of cost recovery that combines a fixed ceiling with flexible billing should be implemented.Finally,the institutional functions of notarial mediation should be reinforced,guided by the logic of professionalization.Specifically,this encompasses three key areas:(1)delineating the scope of mediation in accordance with the fundamental principle of"general coverage+highlighting key points+negative list";(2)confirming the qualifications of mediators through the implementation of a unified"certified mediator"model;and(3)enhancing the mode of case closure through the establishment of a multifaceted notarial services connecting model.
Notarial mediationNotarization powerSocial mediationDiversified dispute resolution mechanismModernization of national governance
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