Abstract: Both domestic commercial mediation and foreign-related commercial mediation are faced with problems that have no legal basis, which need to be solved by commercial mediation legislation. The premise is to clear up the concept of commercial mediation. There are two approaches to understand the concept of commercial mediation: the objectivism approach based on the definition of dispute type and the subjectivism approach based on the definition of mediation subject. The objectivism approach is mainly used in the existing practice. There are three dilemmas in the concept of commercial mediation under the objectivism approach: it cannot solve the problem of generalization of people's mediation, conflicts with the legislative style of civil and commercial integration, and destroys the coherence of the non-procedural law system. The concept of commercial mediation based on subjectivism should be constructed, that is, commercial mediation should be defined on the basis of commercial mediation organizations, and it should be realized through the privatization of organizational nature, the dual track of organizational types, and the standardization of internal and external mechanisms. The concept of commercial mediation must also take into account the balance between subjectivism and objectivism, that is, pay attention to the auxiliary constraints of commercial mediation on the concept of commercial mediation in terms of scope, methods, and procedures and so on.
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Received: 20 October 2022
Published: 15 April 2023
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