Mediation is a dispute resolution method based on the parties’ mutual agreement, with the mediator acting as a neutral intermediary to assist in resolving the dispute in accordance with legal provisions. Mediation has many similarities with negotiation, but has one key difference: in negotiation, there is no third party guiding the other parties through the process.

A mediator does not have jurisdiction over the case to render a final judgment. Their role is solely to facilitate the mediation process in an orderly manner, guide the parties through the steps, and ensure that the entire process proceeds in the right direction.

Unlike the roles of judges or arbitrators, the role of mediators is to leverage their experience and specialised soft skills dedicated to mediation to maximally assist the parties in the mediation process, helping them make progress toward resolving their dispute.

Mediators carry the responsibility of ensuring that the mediation process runs smoothly and that all parties enter the mediation with a comfortable mindset, ready to share stories they might not disclose in court hearings — those “hidden parts of the iceberg” that have hindered the parties from finding a comprehensive solution to their dispute. They also manage the mediation process in a harmonious and efficient manner.

A skilled mediator is someone proficient in building relationships, organising processes seamlessly, grasping the core issues of the dispute, and fostering a friendly environment for mediation. Such a mediator eliminates concerns and animosities between the parties, fosters and maintains good, equal, and impartial relationships with all participants, and fulfils their duty of effectively managing the mediation process.

Mediation differs from arbitration or litigation in Vietnam in some of the following aspects.

Dispute resolution

Mediation is a process where a neutral third party (a mediator) assists the parties in reaching a mutual solution. This process is typically more flexible, informal, and collaborative, aiming for a win-win outcome.

Arbitration, on the other hand, is an out-of-court dispute resolution mechanism where the arbitrators make decisions based on the law, and is legally binding. Under Vietnamese laws, arbitral awards have the same legal effect as court judgments.

Litigation in Vietnam involves resolving disputes through formal court procedures, where judges make binding decisions based on evidence and applicable laws.

Time and cost

Mediation generally saves much time and involves lower costs compared to arbitration and litigation due to its flexible and streamlined approach.

Arbitration and litigation often involve longer processes and higher costs due to their strict and complex legal procedures in line with laws.

Confidentiality

Most mediation cases are conducted privately and confidentially, with minimal public disclosure compared to arbitration or litigation. This helps ensure the parties maintain discretion about sensitive information.

Depending on the type and nature of the dispute, different types of mediation processes can be applied. The following summarises mediation methods under Vietnamese laws:

• Mediation in civil proceedings. Mediation in civil proceedings is regulated by the Civil Procedure Code No. 92/2015/QH13, dated 25 November 2015 (“Civil Procedure Code”) and applies to disputes in civil, marital and family, commercial, and labour matters. Article 10 of the Civil Procedure Code mandates courts to conduct mediation and facilitate parties in reaching agreements on dispute resolution. Mediation is a compulsory step in dispute resolution, except in cases subject to simplified procedures, those that cannot be mediated, or cases where mediation is not permitted. Furthermore, procedural law also provides that mediation can be conducted during first-instance and appellate trials, as evidenced by the presiding judge asking the parties if they can reach an agreement on the resolution of the case. Depending on each stage, the mediation and agreements between parties are recorded in different forms and with varying legal value.
• Mediation and dialogue at court. Mediation and dialogue at court are regulated by the Law on At-court Mediation No. 58/2020/QH14, dated 16 June 2020 (“Law on At-court Mediation”). Different from mediation in civil proceedings described above, “mediation at court” refers to mediation activity conducted by a qualified mediator before the court initiates a civil case (Article 2.2). If parties voluntarily agree to resolve a part or all aspects of the civil case or administrative complaint through mediation, it is considered successful mediation.
• Commercial mediation. Commercial mediation is governed under Decree No. 22/2017/ND-CP on commercial mediation, dated 24 February 2017 (“Decree No. 22/2017/ND-CP”). Article 3.1 of Decree No. 22/2017/ND-CP defines commercial mediation as a method of resolving commercial disputes based on the agreement of the parties involved, with the assistance of a commercial mediator acting as an intermediary under this decree. The scope of disputes resolved through commercial mediation includes: disputes arising from commercial activities; disputes between parties of whom at least one is engaged in commercial activities; and other disputes that are prescribed by law to be resolved through commercial mediation. A dispute will be resolved through commercial mediation if the parties involved so agree. The parties may reach an agreement on dispute resolution through mediation before or after a dispute arises or at any time in the process of dispute resolution.
• Land dispute mediation at the Commune-Level People’s Committee. This type of mediation is governed by Articles 235 and 236 of the Law on Land No. 31/2024/QH15, dated 18 January 2024, for disputes over land use rights. This is also a must-have procedure that the disputing parties need to follow prior to initiating a lawsuit at a competent court.
• Grassroots mediation. Grassroots mediation is governed by the Law on Grassroots Mediation No. 35/2013/QH13, dated 20 June 2013 (“Law on Grassroots Mediation”). This law specifies principles and state policies on grassroots mediation, mediators, mediation teams, grassroots mediation activities, and the responsibilities of organisations and agencies in grassroots mediation activities. This type of mediation applies to local disputes of various types, yet it is the least popular mediation type compared to the others due to the issue of legal enforceability. Mediation activities conducted by courts, arbitration, commercial mediation, labour mediation, and mediation conducted at the Commune-Level People’s Committee are not within the scope of this law.

Vietnam encourages mediation as an alternative to litigation, and this is reflected in the country’s legal regulations and policies.

The Law on At-court Mediation provides detailed provisions for organising mediation and dialogue before accepting a case for litigation in court. People’s Courts are responsible for organising mediation sessions to allow parties to reach agreements and resolve disputes, thereby minimising the need for formal court trials. Article 5 of this law explicitly states that the state encourages parties to resolve civil cases and administrative complaints through mediation and dialogue in court. It also encourages individuals eligible under the law to become mediators and facilitates mediation and dialogue activities at court.

The Law on Grassroots Mediation promotes resolving conflicts and disputes through grassroots mediation and other appropriate forms of mediation. It encourages respected individuals within families, clans, and residential communities to participate in grassroots mediation and other suitable mediation efforts. The law highlights the central role of the Vietnam Fatherland Front and its member organisations in grassroots mediation, providing favourable conditions and support for such activities. Additionally, the state supports grassroots mediation financially, including developing and distributing materials, organising training and guidance on mediation skills, reviewing and awarding outstanding grassroots mediation efforts, compensating mediators based on cases handled, and covering other necessary expenses. The central government allocates additional funds to localities that are unable to balance their budgets to support grassroots mediation activities.

The Government of Vietnam also encourages the use of commercial mediation. Article 5 of Decree No. 22/2017/ND-CP states that the state encourages disputing parties to use commercial mediation to resolve disputes in the field of commerce and other disputes eligible for commercial mediation, as prescribed by law. It also encourages the mobilisation of resources to support commercial mediation activities, including training and capacity-building for commercial mediators and organisations involved in commercial mediation.

Reasons for encouraging mediation include:

• Low cost and prompt resolution: Mediation mechanisms are generally less expensive and faster than court trials.
• Reducing the burden on the court system: Mediation helps reduce the number of cases requiring formal trials, thereby alleviating pressure on the judicial system.
• Maintaining relationships between parties: Mediation fosters agreements through dialogue and good will, helping to preserve relationships.
• Voluntary implementation of outcomes: Mediation results are often based on mutual agreement, making enforcement voluntary and more effective than court-imposed judgments.

Thus, Vietnam not only encourages mediation but also establishes a legal framework and supportive policies to enhance the effectiveness of this approach.

Under Vietnamese laws, courts cannot mandate parties to mediate, but they need to encourage and organise mediation sessions before accepting a case or during the case resolution process. This is reflected in the following regulations.

According to Article 3 of the Law on At-court Mediation, the principle of mediation and dialogue at the court is based on the voluntary participation of the parties, and they cannot be forced to reach an agreement or compromise against their will. This means that courts cannot compel parties to mediate if they do not agree. However, courts are responsible for organising mediation and dialogue sessions before accepting a case, except in cases where mediation is not allowed by law.

Article 205 of the Civil Procedure Code stipulates that courts must conduct mediation during the preparatory stage of first-instance trial proceedings for civil cases, except in cases where mediation is prohibited. The courts will facilitate negotiations and agreements between the parties, but participation in mediation must still be voluntary.

Vietnamese courts do not have the authority to force parties to mediate. However, they need to encourage and arrange mediation sessions to help parties reach agreements, resolve disputes promptly, and ease the burden on the court system.

Courts in Vietnam cannot penalise a party for refusing to mediate except in relation to land disputes, for which mediation at the Commune-Level People’s Committee is a requirement prior to initiating any litigation at court. If the parties in a land dispute fail to resort to mediation at the Commune-Level People’s Committee before submitting a claim petition to the court, such petition will be dismissed.

Other than that, the disputing parties have rights to refuse to participate in mediation at the court for other types of dispute when invited to engage in mediation. Article 8.1.a of the Law on At-court Mediation stipulates the rights of parties to participate in mediation and dialogue at court, including the right to accept or refuse mediation or dialogue, or to terminate mediation or dialogue. Article 205.2 of the Civil Procedure Code also specifies that mediation must be conducted based on the voluntary agreement of the parties, and coercion or threats of coercion to force parties into agreements that go against their will are not permitted.

Mediation can be conducted at any stage before or during the court proceedings. Prior to court proceedings, disputing parties, including organisations, individuals related to the civil matter, and qualified mediators, actively participate in the at-court mediation to facilitate the resolution of conflicts.

During the court proceedings, mediation takes place in the early stages of a case, i.e., during the preparatory phase of a trial. Courts and judges play a significant role in encouraging and organising mediation sessions, aiming to resolve disputes amicably and efficiently.

In Vietnam, mediation is considered most effective in civil disputes, and business and commercial disputes.

Mediation is also highly effective for disputes between family members, addressing issues such as marriage, inheritance, and property disputes, where maintaining relationships is essential. Mediation helps parties navigate sensitive issues with less hostility. The focus on maintaining positive relationships enables family members to continue interacting harmoniously, which is especially important in cases where ongoing relationships, such as co-parenting or shared family assets, must be managed.

Furthermore, in business and commercial disputes, mediation aids in reaching mutually beneficial solutions, maintaining business relationships, and resolving conflicts efficiently.

According to Vietnamese law, not all disputes can be mediated. The Civil Procedure Code and the Law on At-court Mediation stipulate that, during the preparation stage for trial, the assigned judge is responsible for organising a mediation session, except for:

• civil lawsuits that must not be mediated, including: (a) claims for compensation for damage caused to state properties; and (b) civil lawsuits arising from civil transactions which are contrary to law or social ethics; and
• civil lawsuits that cannot be mediated, including where: (a) the defendants or the persons with relevant interests and duties are intentionally absent despite having been duly summoned twice by courts; (b) the parties involved cannot take part in the mediation for plausible reasons; (c) the parties involved, being wives or husbands in divorce cases, have lost their civil act capacity; and (d) one of the parties involved applies for non-mediation.

Commercial fraud disputes are not entirely excluded from the mediation process. However, if a commercial fraud dispute is assessed by a competent authority as arising from civil transactions that violate legal prohibitions or go against social ethics, mediation may not be feasible.

Yes, dispute resolution clauses requiring mediation are relatively common in contracts in Vietnam. These clauses are often included to provide a structured approach to resolving conflicts before resorting to formal litigation or arbitration.

In general, mediation clauses can be enforced in Vietnam. However, their enforceability depends on several factors. Mediation in Vietnam is grounded in the principle of voluntary participation, where both parties must willingly agree to engage in the process. Although the courts can encourage and organise mediation sessions, they cannot compel parties to participate. The enforceability of mediation depends on the mutual willingness of the parties to co-operate. If a party refuses to engage, the mediation clause may become unenforceable. Thus, the success of mediation relies heavily on voluntary and co-operative engagement from both sides. Additionally, if the dispute falls into the category of cases where mediation is not permitted or is one that cannot be mediated, as mentioned above, the mediation clause cannot be enforced by the court either.

Therefore, while mediation clauses are widely used and supported, their enforcement is contingent on the mutual agreement and co-operation of the parties involved.

With respect to commercial mediation, Article 11 of Decree No. 22/2017/ND-CP prescribes that the mediation agreement be in writing. It could be established as a separate agreement or incorporated as a clause within a primary agreement. The mediation agreement may be concluded after the emergence of disputes or at any time during the dispute settlement process.

The commonly known commercial mediation centre and the first to be launched in Vietnam is the Vietnam Mediation Centre (VMC), a division of the Vietnam International Arbitration Centre. The VMC has introduced its model mediation clause as follows: “All disputes arising out of or in connection with this contract shall be resolved through mediation at the Vietnam Mediation Centre (VMC), a division of Vietnam International Arbitration Centre, in accordance with its Mediation Rules.”

For at-court mediation, mediation may be initiated without a pre-agreed mediation agreement. Article 16 of the Law on At-court Mediation provides that, upon the preliminary assessment of the court petition, the dispute may be mediated at the court if it does not fall within one of the following categories:

• disputes concerning civil transactions prohibited by law;
• divorce disputes concerning the incapacity of a spouse; and
• disputes in which a party seeks interim measures.

Commercial mediators must first fulfil the following criteria pursuant to Article 7 of Decree No. 22/2017/ND-CP:

• having full civil act capacity as prescribed by the Civil Code;
• having good moral qualities and prestige and working in an independent, impartial and objective manner;
• possessing a university or higher degree and having at least two years’ work experience in the discipline he/she has studied; and
• having mediation skills and knowledge about law, business and commercial practices and relevant issues.

To become an ad hoc commercial mediator, an application to the Department of Justice is required, pursuant to Article 8 of Decree No. 22/2017/ND-CP. Such application is not required for commercial mediators who sit at a commercial mediation institution. However, to become a mediator of the commercial mediation institution, an application to that commercial mediation institution may be required pursuant to its own rules. The commercial mediation institution may set criteria for its own commercial mediators, which are more stringent than those prescribed above.

For at-court mediators, the mediator must fulfil the following criteria pursuant to Article 10 of the Law on At-court Mediation:

• being a Vietnamese citizen residing in Vietnam, having full civil capacity, being morally righteous, and maintaining exemplary adherence to the law;
• being a former judge, court examiner, court clerk, prosecutor, procuracy examiner, civil judgment enforcement officer, inspector, lawyer, expert, or other professional with at least 10 years’ experience in their field, a person knowledgeable about customs and traditions, and well-respected;
• being experienced and skilled in mediation;
• being healthy sufficient to fulfil assigned duties; and
• having obtained the certification in mediation training, except for those who have been judges, principal court examiners, senior court examiners, principal court clerks, senior court clerks, prosecutors, civil judgment enforcement officers, and inspectors.

An application to the court is required to become the at-court mediator. The at-court mediator may be re-selected every three years.

Commercial mediators are governed by the Ministry of Justice pursuant to Article 42 of Decree No. 22/2017/ND-CP, and at-court mediators are subject to the court where they serve.

The mediators of a commercial mediation institution are subject to that institution’s own codes of conduct. For instance, Articles 2 to 6, and 8 of the VMC’s Code of Professional Conduct and Ethics for Mediators set out the following key principles of the code of conduct for its mediators:

• to respect the parties’ autonomy;
• to be knowledgeable and competent;
• to be independent and impartial;
• to disclose any potential conflicts of interest;
• to maintain confidentiality; and
• to thoroughly study the materials and ensure effective participation and respect among the parties.

According to Article 14.2 of the Law on At-court Mediation, at-court mediators, on the other hand, are required:

• to mediate in line with the Law on At-court Mediation;
• to comply with the laws and be independent, impartial, and objective;
• to maintain confidentiality;
• not to coerce the parties to mediation against their will;
• not to receive money or benefits from the parties;
• to refuse to mediate as required by laws; and
• to respect the consensus of the parties, provided that they are legitimate.

For commercial mediation, Chapter III of Decree No. 22/2017/ND-CP describes the mediation process as follows:

• Step 1. Pursuant to the agreed mediation agreement, the parties appoint the mediator(s), which could be the ad hoc mediator(s) from the list of ad hoc mediators of the Department of Justice or the mediator(s) of a commercial mediation institution. The dispute could be mediated by one or more than one mediator, as agreed upon by the parties.
• Step 2. The parties agree on the mediation rules of a commercial mediation institution or agree on their own procedures.
• Step 3. The parties attend the mediation session(s) at the agreed place and time. The mediator may express his own view to resolve the dispute at any point during the mediation.
• Step 4. In case of a successful mediation, the parties will document the agreed-upon content (“Settlement Agreement”). The Settlement Agreement will be executed by the parties and the mediator and be legally binding and enforceable in accordance with the civil procedure laws. In the case of an unsuccessful mediation, the parties may repeat Step 3 or resort to the competent court/arbitration.
• Step 5. Apply for recognition and enforcement of the Settlement Agreement.

For at-court mediation, Chapter III of the Law on At-court Mediation describes the mediation process as follows:

• Step 1. The plaintiff submits the court petition. Upon the preliminary assessment, the court shall inform the plaintiff of the right to choose mediation and a mediator.
• Step 2. The plaintiff shall decide whether he/she wishes to proceed with mediation and appoint an arbitrator.
• Step 3. Upon the decision of the plaintiff, the court may assign a judge in charge of mediation, and the judge in charge shall appoint a mediator if the plaintiff fails to appoint one. If the plaintiff does not opt for mediation, the case shall be litigated.
• Step 4. The court shall inform the parties and the mediator of the initiation of mediation.
• Step 5. The case shall be mediated if the defendant agrees to mediate, otherwise it shall be litigated.
• Step 6. In the case of a successful mediation, the parties, the mediator, and the judge in charge shall execute the minutes to document their agreement.
• Step 7. The mediator shall transfer the executed minutes and relevant documents to the court for recognition.

The process of mediation itself is less complicated and time consuming than other dispute resolution forums. Nevertheless, one obstacle that may mean that the parties refrain from using mediation could be the human element. In order to reach a successful mediation, much effort is required from both parties and the mediator. The mediator must be accredited and highly regarded to an extent that is sufficient to facilitate communication between the parties so that they can reach a mutually satisfactory agreement; however, the number of such mediators in the field related to the parties’ dispute can be limited.

Understanding of mediation has increased in recent years. Upon the adoption of Decree No. 22/2017/ND-CP, as well as the Law on At-court Mediation, numerous conferences and seminars discussing mediation have been held by the authorities, commercial mediation institutions, and universities of law. Businesses are becoming familiar with the concept of mediation and its processes, as well as its benefits.

Mediation in Vietnam offers several advantages. Firstly, it offers confidentiality — mediation sessions are private regardless of whether they are at-court mediation or commercial mediation. The details of the dispute will not be disclosed or made available to the public. Confidentiality may encourage the parties to express their concerns, interests and potential solutions. Secondly, it is cost effective and efficient. In comparison with traditional litigation, mediation involves fewer formalities, therefore, is expedited and less expensive. The parties may resolve their disputes within weeks or days, drastically reducing time and expenses. Thirdly, the mediation process is flexible in nature. The outcomes of the mediation may be tailored to the needs of both parties, which may not be viable in a court setting.

On the other hand, the parties may encounter some potential drawbacks during the mediation process. Whilst it is true that mediation offers a more creative solution to resolving a dispute, such a solution is not always reached. If mediation fails, the parties may need to resort to litigation, therefore, the time and effort required for the mediation may ultimately be wasted.

In Vietnam, an online mediation process is possible. Decree No. 22/2017/ND-CP and the Law on At-court Mediation do not restrict the method of communication used in mediation between the parties. The parties may opt for remote mediation. In practice, the VMC has been offering professional mediation services that include online mediation. In 2021, the VMC adopted its own online mediation rules, which can be found at vmc.org.vn/en/online-mediation-rules.

In Vietnam an increased use of mediation as a dispute resolution mechanism alternative to court litigation has been observed. For commercial mediation, according to VMC reports, in the period from 2021 to the end of 2023, mediated cases accounted for more than 60% of the total mediated cases since its establishment. For at-court mediation, according to court reports for the years 2021, 2022 and 2023, the numbers of mediated cases were 28,004, 117,443 and 119,058, respectively.

In Vietnam, AI has not yet been employed in mediation.