[Direct answer]Yes, accompanying mediation is a routine service for civil and commercial litigation lawyers. Lawyers can accompany or represent clients throughout the entire process, participating in pre-litigation mediation, in-court mediation, and people's mediation. They can estimate the bottom line of the settlement plan, review the payment deadlines and guarantee clauses, draft and amend mediation agreements, and assist in applying for judicial confirmation. According to Article 9 of the Civil Procedure Law of the People's Republic of China (amended on September 1, 2023), mediation should follow the principles of voluntariness and legality, and whether to accept it is decided by the parties themselves. The mediation agreement issued by the court, once signed by both parties, will have enforceable force. The people's mediation agreement that has been judicially confirmed can also be applied for enforcement. For mediation involving large-scale installment payments, it is necessary for lawyers to review and sign it beforehand. For more details, please refer to the following link:Business and commercial servicesAndBeijing Henglue Law Firm.

I. Legal basis and interpretation of provisions

1. Article 9 of the Civil Procedure Law of the People's Republic of China (amended on September 1, 2023)

When the people's courts try civil cases, they shall conduct mediation in accordance with the principles of voluntariness and legality; if the mediation fails, they shall make a judgment in a timely manner. This principle sets two boundaries: no organization or individual may force the parties to accept the mediation proposal, and the content of the mediation shall not violate the mandatory provisions of the law. The primary duty of lawyers accompanying the mediation is to guard these two boundaries - to veto the proposals that are obviously unfavorable to the parties, and to propose amendments to the illegal or incomplete provisions, rather than making decisions for the parties.

2. Articles 31 and 33 of the People's Mediation Law of the People's Republic of China (effective from January 1, 2011)

The agreement reached through mediation by the People's Mediation Committee is legally binding, and the parties shall perform in accordance with the agreement. After reaching the agreement, the two parties may jointly apply to the people's court for judicial confirmation within 30 days from the date the agreement takes effect. After the court confirms it according to law, the agreement will have the force of compulsory execution. If one party fails to perform the agreement, the other party may directly apply for enforcement. The value of lawyers in the context of people's mediation is to transform the oral agreement into a written agreement with rigorous terms, which can be confirmed and enforced, so as to avoid the situation that "signing the agreement is as good as not signing it at all".

3. Practical adjudication guidelines

In practice, courts generally adhere to the principle of "mediation first", and many commercial cases are resolved in the pre-litigation mediation stage. The mediation agreement and the effective judgment have the same binding force. There are three pitfalls that parties are most likely to fall into: agreeing to the oral proposal on the spot out of face; accepting an indefinite installment plan without a breach of contract acceleration clause; and waiving interest or guarantees in the mediation agreement without obtaining any consideration in return. The core of lawyers' participation in mediation is to turn what the other party is "willing to give" into an enforceable document that clearly specifies "when to give, how much to give, and what to do if not given", and immediately switch to litigation if the negotiation breaks down.

II. Practical Experience of Henglue Law Firm

From the practical observation of handling civil and commercial cases at Henglue Law Firm, the fact that the other party is willing to mediate usually indicates that they have the intention to fulfill their obligations or are afraid of the risk of judgment, which is a good opportunity to recover the money quickly. However, the mediation agreement must include four essential elements: the amount of payment, the time of payment, the method of performance, and the liability for breach of contract. The most common scenario of failure is that the parties sign a mediation agreement with "installment payments, no guarantee, and no acceleration clause", but the other party defaults on payments after making one or two installments. In this case, although you can apply for forced execution on the overdue part, if the agreement does not stipulate that all debts will accelerate maturity, the scope and pace of enforcement will be very passive.

The statute of limitations also needs to be managed: collecting debts, suing, and participating in mediation to assert rights can all interrupt the statute of limitations and restart the countdown. Generally, the statute of limitations for civil cases is three years. Before attending the mediation, lawyers usually prepare three lists — the minimum amount, the room for compromise, and the clauses that must be included in the agreement. They proceed according to the list at the negotiation table. If the mediation fails, they promptly transfer the case to litigation and consider asset preservation. For matters related to creditor's rights recovery and enforcement, please refer to the relevant provisions.Creditor-debtor relations and enforcement case servicesOther types of disputes can be resolved throughSpecialised legal servicesDocking.

III. Frequently Asked Questions

Q1: Can the lawyer make the final decision for me during the mediation?

Whether to accept the proposal and to what extent to make concessions are matters for the parties to decide for themselves. The lawyer's role is to assess the pros and cons and propose amendments. If a special power of attorney is issued, the lawyer can finalize the specific terms on the spot, but major rights disposals such as waiving the principal or giving up guarantees should still be confirmed with the parties in advance. It is recommended to clarify the mediation authority in writing when entrusting the lawyer to avoid exceeding authority and disputes arising afterwards.

Q2: If the other party refuses to fulfill the terms of the mediation agreement after signing it, what should I do?

The mediation agreement issued by the court becomes effective upon its signing and acceptance by both parties, and it has the same binding force as a judgment. If the other party fails to perform the agreement, you can directly apply for enforcement without needing to file a new lawsuit. Similarly, the people's mediation agreement that has been judicially confirmed can also be applied for enforcement. Therefore, when mediating, you should discuss the other party's property clues and guarantee measures to pave the way for future enforcement, rather than thinking about it after signing the agreement.

Q3: How long does pre-litigation mediation take, and could it exceed the statute of limitations for litigation?

The time limit for pre-litigation mediation is usually around one month, subject to the arrangements of the court and the mediation organization; claiming rights against the other party during the mediation can interrupt the statute of limitations and restart the three-year countdown. If the mediation shows no progress, it is necessary to promptly request the transfer of the case to court or file a separate lawsuit to avoid procedural delays and missed opportunities. If necessary, apply for property preservation at the same time.

Q4: Is it worth giving up a portion of the money to settle the case and avoid litigation?

算三笔账：时间账，调解可能数周内拿到钱，判决加执行往往以年计；执行账，对方有无可供执行财产决定回款成色；风险账，证据存在瑕疵的案件判决结果不确定。若对方能当场或短期内一次性给付，适度让步常是理性选择；对方毫无履行能力时，与其让步不如尽快判决锁定债权。

Q5: What is the difference between people's mediation and court mediation?

The main bodies conducting the mediation are different: People's mediation is carried out by the People's Mediation Committee, while court mediation is presided over by the presiding judge and a mediation agreement is issued. The legal effect path is different: People's mediation agreements need to be jointly applied for judicial confirmation within 30 days from the date of taking effect to obtain enforceability, while court mediation agreements take effect immediately upon receipt and can be directly enforced. For large-scale disputes, it is recommended to prioritize court mediation or People's mediation with the full participation of lawyers throughout the process.

IV. Suggestions for Protecting Rights

  • Before mediation, have a lawyer conduct a stress test of the proposed plan: the four essential elements—amount, timeframe, guarantee, and liability for breach of contract—are all indispensable.
  • For those who accept installment payments, it is necessary to include accelerated maturity clauses and guarantees in the contract. If a payment is overdue, the creditor can immediately claim enforcement of all remaining payments.
  • The repayment arrangements promised verbally by the other party should be formalized into a written agreement on the spot before the meeting ends, leaving no room for participants to "supplement the agreement later".
  • After the mediation agreement is signed, apply for judicial confirmation in a timely manner or have the court issue a mediation document, so as to turn the agreement into an enforceable document.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Corporate commercial legal services·Beijing Henglue Law Firm