The “Working Regulations of the Supreme People’s Court Concerning Entrusted Appraisal in Pre-litigation Mediation (Trial)” has been implemented since August 1, 2023

The pre-litigation property preservation, pre-litigation evidence preservation, and pre-litigation injunction are all special pre-litigation measures taken by the court in accordance with the “Civil Procedure Law” to protect the rights and interests of the plaintiff. These pre-litigation measures are unilateral, that is, the defendant’s consent is not required. However, pre-litigation mediation is not the case. It relies on the “People’s Mediation Law” and other relevant laws and regulations, and the people’s court acts as a window to assign the received cases to specially invited mediators or other mediation organizations for mediation after confirming that both parties agree to mediation. Because the pre-litigation mediation is not a civil trial procedure stipulated in the “Civil Procedure Law”, and it is not unilateral, the mediator or mediation organization cannot decide whether to entrust appraisal or not based on its own authority or the application of one party. Due to disputes involving traffic accidents, medical treatment, product liability, etc., which require an appraisal to determine the liable party and the proportion of liabilities, in order to provide more measures for rapid settlement of disputes through pre-litigation mediation, the Supreme People’s Court issued the “Working Regulations of the Supreme People’s Court Concerning Entrusted Appraisal in Pre-litigation Mediation (Trial)” (hereinafter referred to as the “Regulations”), which mainly includes:

1. The principle of voluntariness

The “Civil Procedure Law” stipulates that in judicial proceedings, judges may entrust appraisal in accordance with the law or upon application, without the consent of both parties. However, Article 2 of the Regulations stipulates that pre-litigation appraisal should obtain the consent of both parties. Although Article 5 stipulates that the court or its appointed mediation organization may explain to the parties if it deems that the case is suitable for appraisal, and specifies a period for submitting a pre-litigation appraisal application. It is obviously that the court or its appointed mediation organization does not have the right to entrust appraisal at its own discretion. The principle of voluntariness is based on the premise that the pre-litigation mediation requires the voluntariness of both parties.

2. Scope of pre-litigation appraisal

Article 3 of the Regulations stipulates that the scope of pre-litigation appraisal includes: (1) disputes over liability for motor vehicle traffic accidents; (2) medical injury liability disputes; (3) disputes over compensation for property damage; (4) construction project contract disputes; (5) labor contract disputes; (6) product liability disputes; (7) disputes over sales contracts; (8) disputes over the right to life, body, and health; and (9) other disputes that are suitable for pre-litigation appraisal.

3. Pre-litigation appraisal process

Articles 6 to 8 of the Regulations stipulate the relevant procedures, including the parties uploading applications and relevant appraisal materials through the People’s Court Mediation Platform; the person presiding over the mediation shall review the application and relevant materials within 5 working days after receiving the aforementioned documents; for those which fail to pass the review, the person presiding over the mediation can request the application party to make corrections; for those that have passed the review, the person presiding over the mediation shall report to the people’s court for approval; if approved by the people’s court, the materials will be entered into the entrusted appraisal system of the people’s court; if rejected by the people’s court, the application will be returned to the parties, the person presiding over the mediation shall explain to the parties and take record.

4. Handling of appraisal reports in the case that the dispute cannot be settled through pre-litigation mediation

According to Article 17 of the Regulations, if no mediation agreement is reached through mediation, the appraisal materials (including appraisal report) and mediation materials will be uploaded to the platform of the people’s court for filing. Article 18 stipulates that if a party repeatedly applies for appraisal regarding the same matter as appraised in the pre-litigation mediation without justifiable reasons, the people’s court shall not allow such application. Article 19 stipulates that if the parties are found to have maliciously used the pre-litigation appraisal to delay the pre-litigation mediation and affect the normal litigation order, the court would take such factor into consideration while reviewing the application for entrusted appraisal again in the litigation process. It can be seen that without justifiable reasons, the materials and reports of pre-litigation appraisal will become evidence in the litigation process. It is suggested that the parties should not underestimate the pre-litigation appraisal. If they choose pre-litigation mediation and appraisal, they should try to provide comprehensive appraisal materials.