Dispute resolution by mediation, conciliation in Vietnam

Dispute resolution by mediation, conciliation method is the efficient and popular dispute resolution method in the world. Vietnam is currently completing step by step the legal system on dispute resolution by mediation, conciliation.

Dispute resolution by mediation, conciliation in Vietnam

Vietnamese regulations on dispute resolutions by mediation, conciliation, includes

1) Vietnamese regulations on dispute resolution by mediation, conciliation by grass root mediation, conciliation

a) Grassroots conciliation, mediation is the process whereby the conciliators, mediators guide and assist the parties together in reaching an agreement on voluntary settlement between themselves of conflicts, disputes, law infringement in villages, hamlets, street residential groups, street quarters and other residential communities etc.

b) Grassroots conciliation, mediation shall be applicable to the following conflicts, disputes and legal infringements:

 i)  Conflict between the parties (caused by the different conception of life, lifestyle, personality conflicts or conflict for use of passing path, common path,  use of electricity,  water, sub-projects, life timetable, common unsanitary or other reasons;
 ii) Any dispute arising out of civil relations as disputes over the ownership, civil obligations, civil contracts, inheritance, land use rights;
 iii) Any dispute arising from marital relations and family disputes arising from the relationship between spouses; relationships between parents and children; relationship between paternal grandparents, maternal grandparents and grandchildren, between siblings and other members of the family; alimony; determination of the father, mother or child; adoption; divorce;
 iv) Legal infringements prescribed by law for such infringements are not serious enough for criminal prosecution, handling administrative violations;
 v) Violations of criminal law in the following cases:
  (1) No prosecution of the case under the provisions of Article 107 of the Criminal Procedure Code and state agencies are not competent to handle administrative violations in accordance with law;
  (2) The law prescribes that only prosecute the case at the request of the victim, but the victim did not require prosecution under the provisions of Paragraph 1 of Article 105 of the Criminal Procedure Code and not competent state agencies competent to handle administrative violations in accordance with law;
  (3) The case was prosecuted, but then the decision of the authority conducting the proceedings for suspension of investigation under the provisions of paragraph 2 of Article 164 of the Criminal Procedure Code or suspend the cases prescribed in Clause 1 Article 169 of the Criminal Procedure Code and state agencies are not competent to handle administrative violations in accordance with law;

vi) Legal infringements are to apply the measure of education at communes, wards and towns under the provisions of Decree No.111/2013/ND-CP dated September 30, 2013 of the Government stipulating the regime applied administrative remedial education at communes, wards or townships are eligible to apply alternative methods to handle administrative violations prescribed in Chapter II of Part Five of the law handle administrative violations;

vii) The other cases not prohibited by law.

c) The following cases which are not subject to  mediation, conciliation:

 i) Conflicts and disputes infringe upon the interests of the State or the public interest;
 ii) Violation of the laws on marriage and family that prescribed by law shall be settled by competent state agencies, civil transactions in violation of law or social ethics;
 iii) Legal infringements which should be prosecuted for criminal liability, except in cases specified in 1.c.v mentioned above;
 iv) Violation of the provisions of law which should be handled by administrative sanction, except for cases prescribed at Point 1.c.vi mentioned above;
 v) Conflicts and disputes which are not subject to grassroots mediation, conciliation include:
  (1) Mediation, conciliation of commercial disputes shall comply with the provisions of the Commercial Law and guidelines;
  (2)  Mediation, conciliation of labor disputes shall comply with the provisions of the Labor Code and the guidelines for implementation.

d)  The mediator, conciliator is decided by the chairman of the commune People”s Committee in accordance with the procedures to elect accredited mediator, conciliator regulated by the Law on the grassroots conciliation, mediation.

2) Vietnamese regulations on dispute resolution by mediation, conciliation in civil proceedings
 a) Dispute resolution by mediation, conciliation before Court Session
 - The courts must, during the period of preparation for the first-instance trial of cases, carry out conciliations for the involved parties to reach agreement on the resolution of the cases, except cases which must not be conciliated or cannot be conciliated.
 - When the involved parties have reached mutual agreements on issues to be settled in civil cases, the courts must make records of the successful conciliation. Such records must be immediately sent to the parties participating in the conciliation.
 - Upon the expiry of the seven-day time limit after making the records on successful conciliation, if no parties change their opinions on such  agreement, the judge who presides over the conciliation session or another judge who has been assigned by the court”s chief judge shall issue a decision recognizing the agreement of the involved parties.
 - The decisions to recognize the involved parties” agreements shall take effect immediately after they are issued and neither appealed nor protested against according to the appellate procedures.

b) Dispute resolution by mediation, conciliation at Court Sessions
- At the court session, the presiding judge shall ask whether the involved parties can reach mutual agreement on the resolution of the cases or not.  In cases where they reach agreements on the resolution of the cases and their agreements are voluntary, not contrary to law or social ethics, the  trial panels shall issue decisions to recognize their agreements on the resolution of the cases.
- The court decisions recognizing the involved parties” agreements on the resolution of the cases shall take legal effect.

c) Civil cases which must not be mediated, conciliated
- Claims for compensation for damage caused to State assets.
- Civil cases arising from transactions which are contrary to law or social ethics.

3) Vietnamese regulations on Dispute resolution by mediation, conciliation in land disputes

- The State encourages parties to a land dispute to conciliate by themselves or to resolve the land dispute by conciliation at the grass-roots level.
- Land disputes which the parties are not able to resolve by conciliation shall be referred to the people”s committee of the commune where the land is situated for conciliation.
- Chairmen of people”s committees of communes are responsible to organize conciliation of land disputes in their localities within a period of no more than forty five (45) days from the date of receipt of a request for resolution of a land dispute.
- The conciliation must be recorded in minutes signed by the parties and verified by the commune people”s committee regarding whether it is a successful conciliation or not. The minutes of conciliation shall be sent to the parties to the dispute and kept at the people”s committee of the commune where the land is situated.

4) Vietnamese regulations on dispute resolution by mediation, conciliation in labor disputes

- An individual labour dispute must pass through procedures for conciliation by a labour conciliator, which the State administrative authority for labour of a district, town or provincial city appoint, prior to a petition to a court to resolve the dispute, except for the following labour disputes for which it is not mandatory to conduct conciliation procedures:
o (a) A dispute relating to the disciplinary measure of dismissal for breach of the law on labour, or a dispute arising from unilateral termination of a labour contract;
o (b) A dispute relating to payment of compensation for loss and damage, or payment of allowances upon termination of a labour contract;
o c) A dispute between a domestic servant and the employer;
o (d) A dispute relating to social insurance in accordance with the law on social insurance, or health insurance in accordance with the law on health insurance;
o (dd) A dispute relating to payment of compensation for loss and damage between an employee and an enterprise or professional entity sending a worker to work overseas pursuant to a contract.
- A conciliator must terminate the conciliation within five (5) working days from the date of receipt of the request for conciliation . The labour conciliator is responsible to guide the parties in their negotiations, and if the two parties reach a settlement then the labour conciliator shall prepare minutes of settlement.
In the event that the two parties do not reach a settlement, the labour conciliator shall provide a settlement proposal for consideration by the two parties. If the two parties agree to the settlement proposal, then the labour conciliator shall prepare minutes of successful conciliation.
If the two parties to the dispute fail to agree on the settlement proposal, or if one of the parties has been validly summonsed twice but is still absent without a legitimate reason, then the labour conciliator shall prepare minutes of unsuccessful conciliation.
- In the event of an unsuccessful conciliation, or if one of the parties fails to implement the agreement set out in the minutes of successful conciliation, or if on expiry of the time-limit for conciliation the labour conciliator has not conducted a conciliation, each disputing party has the right to petition the people”s court to resolve the dispute.

5) Vietnamese regulations on dispute resolution by mediation, conciliation in commercial disputes

 Mediation is one of forms of dispute resolution in commerce. Conciliation between the parties in which a body, organization or individual selected by the parties acts as mediator.

In summary, Vietnam has its regulations on dispute resolution by mediation, conciliation. However, dispute resolution by mediation, conciliation in Vietnam is still limited because the legislation on mediation, conciliation is still incomplete and enforcement of the mediated, conciliated agreement is not high effective. Vietnam is on the process of improvment of legal system on dispute resolution by mediation, conciliation.

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