Legal regulations on recognition of mediation agreements under vietnamese law

Mediation is one of the methods encouraged by Vietnamese law for resolving civil, land, family, business, and commercial disputes, with the aim of reducing the burden on the judicial system, saving time and costs for the parties, and preserving social relationships. However, for a mediation agreement to have legally binding force, requesting the Court to recognize the mediation outcome is a crucial step to ensure its enforceability.

This article by NPLAW analyzes the current legal provisions on recognition of mediation agreements, including conditions, contents, and procedures for such recognition.

I. Current situation of recognition of mediation agreements

The mechanism for recognizing out-of-court mediation agreements is governed by the Law on Mediation and Dialogue at Court 2020 and the Civil Procedure Code 2015, which have contributed to reducing the workload of the courts.

However, several limitations still exist, such as:

- The number of petitions for recognition of out-of-court mediation results remains low because people are not fully aware of their rights or do not trust this mechanism.

- There is a lack of detailed guidance on the form and content of valid mediation agreements, leading to many cases being refused recognition by the Court.

- Some Courts still struggle in handling petitions for recognition due to procedural technicalities and difficulties in assessing the legality of the agreement.

- There are no clear sanctions for refusal to execute recognized mediation agreements.

II. Legal provisions on recognition of mediation agreements

1. Conditions for recognizing mediation agreements under the law

Conditions for recognizing mediation outcomes at Court

According to Article 33 of the Law on Mediation and Dialogue at Court 2020, a mediation result shall be recognized when the following conditions are met:

1. The parties have full civil act capacity;

2. The parties are those with rights and obligations related to the content of the agreement, and they have reached consensus;

3. The content of the parties’ agreement is entirely voluntary, does not violate prohibitions of the law, is not contrary to social ethics, and does not aim to evade obligations towards the State or other organizations or individuals;

4. In cases of consensual divorce, the agreement must fully address divorce matters, property division, and care, nurturing, and education of minor children, or adult children who lack civil act capacity or cannot work and have no assets to support themselves, ensuring legitimate rights and interests of the spouses and children under the Law on Marriage and Family;

5. If the agreement involves rights and obligations of others who were not present at the mediation session, it requires their written consents to recognize the agreement;

6. If the parties reach agreement on only part of a civil dispute or part of an administrative complaint, recognition is granted only when such agreement does not affect other parts of the dispute or complaint.

Thus, under the latest regulations, to have a mediation result recognized by the Court, all the above conditions must be satisfied.

Conditions for recognizing out-of-court mediation results 

Under Article 417 of the Civil Procedure Code 2015, the conditions for recognizing out-of-court mediation agreements include:

- The parties participating in the mediation agreement have full civil act capacity.

- The parties are those with rights and obligations concerning the content of the mediation agreement. If the agreement involves the rights and obligations of a third party, that party’s consent is required.

- One or both parties submit a petition to the Court for recognition.

- The content of the mediation agreement is entirely voluntary, does not violate prohibitions of the law, is not contrary to social ethics, and does not aim to evade obligations to the State or third parties.

2. Essential contents in a decision recognizing a mediation agreement

According to the form of decisions attached to Official Dispatch No. 235/TANDTC-PC of 2021 issued by the Supreme People’s Court on sample forms for recognizing or not recognizing mediation results, a decision recognizing a mediation agreement must include:

- Legal basis;

- The Court’s assessment;

- Date of the mediation minutes;

- Decision to recognize the mediation result, detailing each agreement reached by the parties as recorded in the minutes;

- The legal effect of the decision.

3. Procedure for requesting and issuing a decision on recognition of mediation agreements at Court

Under Article 32 of the Law on Mediation and Dialogue at Court 2020, the procedure for issuing a decision recognizing or not recognizing mediation results at Court is as follows:

1. After preparing the minutes recording the mediation result, the mediator forwards the minutes and accompanying related documents to the competent Court to issue a decision recognizing the mediation result if the parties give request.

2. The time for preparing the decision on recognition is 15 days from the date the Court receives the minutes and attached documents. During such a period, the Judge assigned by the Chief Justice has the following rights to:

- Request one or both parties to present their opinions on the recorded mediation result;

- Request competent agencies, organizations, or individuals to provide documents for the decision-making if deemed necessary. Such entities must respond within 5 working days from receipt of the Court’s request.

3. At the end of the above period, the Judge must issue one of the following decisions:

- If all conditions under Article 33 of the Law on Mediation and Dialogue at Court 2020 are met, the Judge issues a decision recognizing the mediation result.

- If conditions are not met, the Judge issues a decision on not recognizing the result, stating clear reasons, and then transfers the decision, minutes, and documents to the competent Court for case resolution under procedural law.

4. The decision on recognition or non-recognition must be sent to the parties and the same-level People’s Procuracy within 3 working days from the date of issuance.

III. Questions related to recognition of mediation agreements

1. What is the time for the Court to issue a decision recognizing a mediation agreement?

According to Article 212 of the Civil Procedure Code 2015, if within 7 days from the date of recording the mediation minutes that no party changes their opinion on the agreement, the Judge shall preside over the mediation session or another judge assigned by the Chief Justice shall issue a decision recognizing the parties’ agreement.

2. In what cases can a decision recognizing a mediation agreement be annulled?

Under Article 38 of the Law on Mediation and Dialogue at Court 2020, if it is concluded that the decision recognizing the mediation result violates any condition under Article 33, the Judge shall issue a decision to annul such recognition and transfer the case to the competent Court for resolution under the Civil Procedure Code or the Law on Administrative Procedures.

3. What is the legal effect of a decision recognizing a mediation agreement?

According to Article 35 of the Law on Mediation and Dialogue at Court 2020:

- The decision has legal effect and cannot be appealed or protested under appellate procedures under the Civil Procedure Code or the Law on Administrative Procedures.

- The decision recognizing a mediation result is enforced under the Law on Enforcement of Civil Judgments.

- The decision recognizing a dialogue result is enforced under the Law on Administrative Procedures.

4. Can a person who did not participate in the mediation oppose the decision recognizing the mediation agreement?

Under Clause 1, Article 8 of the Law on Mediation and Dialogue at Court 2020, only parties who participated in the mediation or dialogue have the right to request the Court to review the decision recognizing the mediation result.

Therefore, persons who did not participate in the mediation have no right to oppose the recognition decision.

5. Can enforcement be requested based on a decision recognizing a mediation agreement?

Under Article 7 of the Law on Enforcement of Civil Judgments 2008, amended by Clause 4, Article 1 of the Law amending the Law on Enforcement of Civil Judgments 2014, The person entitled to enforcement and the person subject to enforcement may request the civil judgment enforcement agency to execute based on a judgment or decision. Thus, it is entirely lawful to request enforcement based on a decision recognizing a mediation agreement.

IV. Legal advisory services related to recognition of mediation agreements

The above is our comprehensive legal analysis provided by NPLaw to assist clients regarding the recognition of mediation agreements. Should you have any further questions on this matter or any other legal issues, please do not hesitate to contact NPLaw for direct consultation and guidance.