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author/ LiDan

 Family Law Team of Guantao Lawfirm,

 Shanghai,China 

The reform of trial of divorce cases just starts and more and more courts are now settting up an independent trial tribunal in charge of family affairs given the paticuality of the disputes within a family, especially when a minor or minors are involved.

It is true that the whole nation has entered into a high divorce rate era in China. It is true a large part of the married couples go to the civil affairs bureau to get divorced by a DIY divorce agreement. 

Given the fact that the civil affairs bureau only give a formal check about the documents and the divorce agreement which, more often than not, is a DIYed one by the about to divorce couples without a lawyer or is prepared under the instruction of a working staff at the civil affairs bureau who is never a legal professional, no real willingness of divorce is necessary when a divorce application is filed at the civil affaird bureau and a divorce certificate can be obtained if the requirements of documents are satisfied. 

Therefore, lots of disputes have occured afterwards especially about the disposal of marital assets, child custody and child supporting fee and etc. The court still is the final place to solve all the divorce related disputes.

Nowdays, mediation is playing an ever increasingly important role in divorce dispute soloving at court. As per Chinese Marriage Law, mediation is a must procedure for a divorce dispute and mediation, based upon at what stage the lawsuit is at, is divided into pre-action mediation and mediation during the trial. The door of mediation is always open before the divorce case is closed. In Shanghai, the pre-action mediation is gradually accepted by the couples involved and for a couple whose divorce lawsuit is initiated at the court for the first time, a pre action mediation is prerequisite before the case is accepted by the court.

When a divorce lawsuit is initiated at a court, the court will give a pre-action mediation notice with mediation case number on it which is different from the number when the case is officially accepted. A pre-action mediation will take place within two weeks and the mediation can be conducted by a separate telephone conversation with the mediator or a face to face meeting with the mediator at the mediation room inside the court or a separate meeting with the mediator at the same time or the different time by either party. 

If an agreement is reached, a clerk will be called in to record the terms of the agreement reached by the parties involved and the case will be officially filed at the court. The couple need to sign the mediation records and a mediation document will be issued afterwards based on the records later. In some courts like Baoshan District Court in Shanghai, a mediation document can be issued by the court on the spot. The couple officially get divorced when the mediation document is legally served.

For an uncontested divorce, a pre action mediation is a good choice for the couple to solve the the dispute once for all as it is cost saving, time saving and face saving. 

Compared with a trial, the court fee of pre action of mediation is only 1/4 of a trial fee, the parties can get a quick divorce without being involved in a long and exhausting trial process with first and second instrance and most important of all, the divorce can be solved in a peaceful way with both parties’ face being saved. 

Compared with a divorce at the civil affairs bureau, a mediation document issued by the court can be directly enforced throught the court if one party fails to fulfill the terms on the document while a divorce agreement reached at the civil affairs bureau has no enforcibility at court.

However, unlike a mediation which takes place during a trial which is hold by a judge, the mediator conducting the pre action mediation is not a professional judge, who can only solve simple and uncontested divorces. It is beyond the mediator’s ability to solve complex legal issues like the division of share of a company with limited liability or the interest of the insurance interest and etc. When a divorce is highly contested, a trial is unavoidable.

It is naively believed by many people that a pre action mediation is not part of the divorce legal process, thus, a lawyer is not necessary. This is totally wrong and if you personally participate the pre action mediation without a prefessional lawyer’s accompany, your ignorance of the divorce law will be taken advantage of by the other party’s lawyer or the mediator so that an agreement maybe reached, the terms of which are different from what you believe. 

Unlike a judgment granted by the court which can be appealed if you are not satisifed with the first instance judgment, while a divorce document takes immediate effect when it is duly served which can not be appealed. Therefore, if both of you reach an agreement about divorce and child custody but fail to agree on the division of marital assets, get divorced first and leave the asset division disputes for later settlement so that you both can move on and the assets that are obtained after the divorce by you two are individual assets which will not be affected even if the division takes place after the divorce.

My advice about pre action mediation is that always have a lawyer at the mediation table to represent you; have a good evaluation about the overall situation with your lawyer before the mediation takes place; choose the right strategy to communicate with the mediator and to negotiate with the other party and his or her lawyer; set up a reasonable target what you want to achieve from the pre action mediation and make a decision whether to get divorced first or an overall settlement agreement is what you need. 

I am always for a pre action mediation because I will have a first hand information about what the other is like, what the other have as far as evidences are concerned, what the other really wants if possible and if I am lucky, I may have clues about the evidences my client need but have no trace of. Therefore, always make full use of the pre action mediation.