[Direct answer]In the Beijing area, civil and commercial lawyers can mediate, which is one of the lawyer's services explicitly listed in the Law of the People's Republic of China on Lawyers. Before litigation, they can negotiate and draft mediation agreements on behalf of their clients; during litigation, they can represent their clients in court mediation; and after reaching an agreement, they can apply for judicial confirmation. The mediation agreement issued by the court is subject to enforcement just like a judgment. Compared with a judgment, mediation usually takes a shorter time and involves less confrontation, but the prerequisite are that the parties must be voluntary and the solution must be enforceable. Article 122 of the Civil Procedure Law of the People's Republic of China stipulates that civil disputes suitable for mediation shall be mediated first; Article 31 of the People's Mediation Law of the People's Republic of China clearly states that the mediation agreement reached through mediation by the people's mediation committee is legally binding.

1. Problem background and typical scenarios

Many people assume that lawyers' work is just about litigation. When encountering disputes, they either grit their teeth and sue, or settle privately, ignoring the intermediate path of mediation. There are three typical scenarios: First, there are disagreements in the performance of contracts, and both parties still have the willingness to continue cooperation, but they just want to clarify the amount of arrears, the penalty for breach of contract, and the payment period; Second, there are disputes over monetary payments such as loans, project payments, and service fees, which are not huge in amount, but the litigation cycle is long and the enforcement is uncertain; Third, the case has already been sued, and the judge will ask both parties whether they are willing to mediate before or after the trial. In addition to court mediation, people's mediation committees, industry mediation organizations, and commercial mediation institutions can all handle cases. Lawyers can play a role in various channels, and the relevant classifications and paths can be referred to for reference.Business and contract disputes in enterprisesColumn.

II. Key points of contention

The controversy focuses on four points. First, whether mediation equals concession. Parties often worry that sitting down at the negotiation table will lose the initiative in litigation. In fact, mediation and litigation can proceed in parallel. If the negotiation fails, they can return to the litigation and preservation track at any time. Concessions made during the negotiation generally do not constitute a disposition of substantive rights, unless a written agreement has been signed. Second, the legal value of the mediation agreement. A privately signed mediation agreement is essentially a contract. If one party changes his mind, he still needs to file a lawsuit or apply for judicial confirmation. However, a mediation document issued by the court can be directly applied for enforcement, and the difference in legal effect between the two is obvious. Third, who is in charge. If a lawyer is entrusted by one party to participate in the mediation, it is an agency act; if he is entrusted by the mediation organization or both parties to mediate, he must clarify his role in the entrustment document to avoid disputes over conflicts of interest. Fourth, the enforceability of the plan. Whether the other party is temporarily short of funds or simply lacks the willingness to repay directly determines whether to extend the negotiation period or immediately apply for preservation.

III. Professional analysis by Henglue Lawyers

Judging from the judicial practice of Beijing courts, a significant proportion of commercial cases enter the mediation process after being registered. Disputes over sales contracts, contracting contracts, and loan-related disputes are particularly common, and judges often first inquire about the parties' willingness to mediate. Henglu Law Firm's approach to handling such cases is to first conduct a performance ability assessment: for those with genuine repayment ability, mediation can be used to extend the payment period or obtain guarantees; for shell companies or those transferring assets, mediation will only delay the process, and litigation and application for property preservation should be initiated as soon as possible. The key to the design of the plan is to replace "concessions" with "considerations" — the refund amount can be negotiated, but the payment deadlines, guarantee methods, breach of contract liability, and accelerated maturity clauses must be clearly stated, so that the other party will pay the cost for long-term payment. We usually also include a clause in the agreement that "if any payment period is overdue, the parties may apply for compulsory enforcement of the remaining full amount" to avoid mediation being distorted into a unilateral debt reduction. In terms of evidence, pre-mediation reconciliation letters, settlement confirmation forms, and chat records are equally important. They serve as bargaining chips during negotiations and also form the basis for litigation if mediation fails.Creditor's rights and debts, and enforcementThe team often works in collaboration with the commercial team to advance the negotiations and litigation simultaneously.

IV. Practical suggestions and legal basis

The legal basis mainly includes: Article 28 of the Law of the People's Republic of China on Lawyers (adopted on May 15, 1996 and amended and implemented on September 1, 2017), which stipulates that lawyers may accept entrustment to participate in mediation and arbitration activities; Article 31 of the Law of the People's Republic of China on People's Mediation (adopted on August 28, 2010 and implemented on January 1, 2011), which stipulates that the mediation agreement reached through mediation by the People's Mediation Committee is legally binding and the parties shall perform in accordance with the agreement; Article 122 of the Civil Procedure Law of the People's Republic of China (amended in 2023 and implemented on January 1, 2024), which stipulates that for civil disputes sued by the parties to the people's court, if mediation is appropriate, mediation shall be conducted first. Suggestions: First, clear the accounts and fix the evidence before negotiation, and clarify the bottom price and bottom line clauses; Second, the mediation agreement must clearly specify the amount, time limit, method, guarantee and breach of contract liability; Third, for large-scale debts, first find out the other party's property before deciding whether to make concessions; Fourth, apply for judicial confirmation or request the court to issue a mediation document for important agreements in time; Fifth, keep all written communications throughout the process to avoid oral promises that cannot be traced back.

5. Henglue Law Firm's Advice

The value of mediation lies not in accepting a smaller amount of money, but in ensuring the recovery of funds and reducing the risk of enforcement. In practice, those who really suffer losses are often those whose contract terms are too lenient and lack default penalties. If the other party defaults on payments in the first installment, the interest and repayment period that have already been compromised on will not be recovered. There are also two points that are easily overlooked: Firstly, the creditor's rights confirmed in the mediation agreement are also subject to the time limit for applying for enforcement. If the creditor fails to apply for enforcement within the prescribed period, they will also face passive situations. The relevant rules can be referred to for more details.\nEnforcement of the case1. The practical points of the mediation; 2. If the mediation involves a third-party guarantee, the guarantor must sign or stamp the agreement and specify the scope and duration of the guarantee. Otherwise, it will be difficult to hold the guarantor accountable if disputes arise. If the dispute also involves internal company resolutions, the use of company seals, or authorization defects, it is recommended to conduct a compliance review simultaneously. For reference, please refer to the following materials:Full-time legal advisor to the enterpriseMy service experience.Beijing Henglue Law FirmTip: After the mediation plan is implemented, it is still necessary to track and ensure its execution. If there is any delay, the enforcement procedure should be initiated immediately.

VI. Frequently Asked Questions

Q1: Is there a high chance of successfully recovering the payment through mediation?

It depends on the other party's performance ability and the design of the agreement. For cases involving mortgages, guarantees, or stable cash flows, mediated repayments are usually faster than enforcement after a judgment; for cases where the other party is insolvent, mediation only confirms the creditor's rights, but enforcement and preservation measures must still be implemented. The effectiveness of these measures largely depends on the availability of evidence and property clues.

Q2: What materials do I need to prepare to participate in the mediation?

The contract and supplementary agreements, reconciliation statements and settlement confirmations, payment and receipt vouchers, collection letters and delivery records, chat and email exchanges, clues to the other party's assets, and authorization and entrustment procedures. If there is a guarantee involved, the guarantor's credit materials should also be prepared.

Q3: How much do lawyers charge for participating in mediation?

Mediation agents usually charge fees based on stages or a percentage of the subject matter value. Pre-litigation negotiations and in-court mediation can be agreed upon in stages. Court-mediated cases do not incur additional court hearing fees, while the judicial confirmation process charges fees in accordance with regulations. The specific fees are subject to the terms of the agency contract and the standards announced by the accepting court.

Q4: How long does it take from negotiation to implementation?

The duration of pre-litigation negotiations is usually between several weeks and two months. If the case has entered the litigation stage, the court's mediation can be completed within one to three months after the case is registered. If judicial confirmation is required, it usually takes an additional 15 days to one month, which actually depends on the parties' room for compromise and the efficiency of service delivery.

Q5: What should I do first?

First, conduct an inventory of evidence and property to assess the other party's ability to perform and their sincerity in mediation, and then decide whether to negotiate, file a lawsuit for preservation of evidence, or negotiate while litigating. Writing down the bottom-line terms in a written list before the negotiation can significantly improve the enforceability of the agreement.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.