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诉讼调解是中华法系和中国社会主义法制的共同传统。诉讼与调解在存在基础、社会分工和运行机制上都是泾渭分明,并行不悖,而诉讼调解的程序混同则可能带来公权的失范和私权的失衡,破坏审判与调解的各自内在运行规律。因此,应当通过审判与调解程序分离的方式取消诉讼调解,在职能分工与程序衔接的基础上实现分工合作,通过裁判形成对纠纷解决程序利益的评估体系,影响当事人对程序利益的心理预期,促成调解,更促使当事人就彼此权利义务的协商结果最大限度地接近实体法设计的应然权利状态。
Mediation in litigation is the common tradition of the Chinese legal system and the Chinese legal system of socialism. Litigation and mediation are all distinct and uncoordinated on the basis of existence, social division of labor and operation mechanism. The mixed procedure of litigation mediation may bring about the imbalance of public authority and private rights, and undermine the inherent operating law of trial and mediation. Therefore, the mediation of litigation should be canceled through the separation of trial and mediation procedures, the division of labor and cooperation should be realized on the basis of the connection between the division of functions and the procedure, the assessment system of the interests of dispute resolution procedures should be formed through referee, the parties’ psychological expectations of procedural interests should be affected, Mediation, but also to promote the parties to each other’s rights and obligations of the consultation results to maximize the approximation of the substantive law designed right state.