Author:
- Nguyen Thi Huyen Anh – Senior Lawyer
- Tran Phuong Nam – Lawyer
The right to self-determination is one of the fundamental and overarching principles of civil law. In the litigation environment, this principle is most clearly institutionalized through the mediation procedure. The Civil Procedure Code 2015, amended and supplemented in 2019, 2020, 2022, 2023, 2024, and 2025 (CPC), not only considers mediation a mandatory procedure (with some exceptions) but also places the adjudicating authority in the role of assisting the parties in resolving conflicts within civil and commercial relations. From a practical perspective, understanding the nature and legal value of this mechanism is key for individuals and enterprises to thoroughly resolve disputes with the lowest costs and risk levels.
1. Legal Nature and Limits of the Right to Self-Determination in Mediation
Inherently, mediation in civil procedure is the process wherein the Court assists, guides, and facilitates the involved parties to negotiate and reach an agreement on resolving all or part of the case. Unlike the trial phase, where the Judge representing the trial panel issues a judgment based on a strict evaluation of evidence and the application of the law, during the mediation phase, the Judge acts as a legal intermediary. The Judge’s task at this juncture is to disseminate relevant legal regulations and analyze legal consequences so that the parties clearly understand their rights and obligations, thereby voluntarily finding common ground without being subject to any coercion or threat.
However, the right to self-determination of the parties is not limitless. Article 206 of the CPC clearly stipulates that the Court shall not conduct mediation for claims demanding compensation for damages to State property, or cases arising from transactions that violate legal prohibitions or contravene social morals. This limitation rationale stems from the principle of protecting public order and national interests. The law eliminates the risk of parties abusing the court-based settlement mechanism to legitimize acts of dispersing state assets, money laundering, or concealing illegal transactions.
Furthermore, in accordance with Article 207 of the CPC, the mediation procedure cannot be implemented if the parties fail to cooperate, typically when a party deliberately fails to appear for the second time or submits a written request not to participate in mediation. This once again affirms the voluntary principle of this mechanism, the Court cannot compel the parties to participate in mediation if the parties themselves have firmly shut the door to negotiation.
2. Legal Validity of the Decision Recognizing the Agreement of the Involved Parties
The greatest value of the mediation procedure in litigation lies in its legal consequences. When the parties reach an agreement and the Court establishes a Minute of Successful Mediation, the law still grants the parties a “step-back period” of 07 days to think thoroughly. After this period, if there is no change of opinion, the Court will issue a Decision recognizing the agreement of the involved parties.
From a legal perspective, this decision carries significant legal weight and is legally stronger than an ordinary first-instance judgment. It takes legal effect immediately and, notably, is not subject to appeal or protest under appellate procedures. The only path to set aside this decision is through the cassation procedure, subject to extremely stringent conditions requiring proof that such agreement was formed due to mistake, deception, threats, coercion, or violation of legal prohibitions, or contravention of social morals. This strict endorsement by the State helps completely eliminate the risk of the opposing party delaying or reneging, while simultaneously opening the right to request the Civil Judgment Enforcement Authority to conduct coercion if one party refuses to perform their obligations.
3. The Problem of Optimizing Resources and Risk Governance
From our practical experience in consulting and representing clients in commercial dispute resolution, we believe that effectively utilizing mediation opportunities brings immense value to an enterprise’s risk management strategy. Participating in a trial means that the parties must accept a prolonged litigation process across multiple levels, consuming a substantial amount of court fees and legal fees, and opportunity costs. Moreover, the Court’s principle of public trial can expose business secrets, partner information, or weaknesses in the internal governance of the enterprise to the public and the media.
Mediation in civil procedure completely resolves the aforementioned bottlenecks. Simultaneously, it opens up a space for dialogue that is flexible, confidential, and less adversarial. Instead of a winner-takes-all outcome that often leaves irreparable rifts, a Minute of Successful Mediation is the result of calculated concessions, helping to maintain business partnerships in the future.
Thus, it can be seen that the mediation mechanism in civil procedure is not only a formally mandatory procedure but also a powerful legal tool. However, for the negotiation process at the jurisdictional agency to achieve optimal efficiency, the parties require not only goodwill but also a sharp legal strategy and a profound understanding of the strengths and weaknesses of their evidentiary records, in order to make accurate concessions or demands to maximize the protection of their legitimate rights and interests.
Time of writing: 10/03/2026
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